DICE Therapeutics Inc. filed SEC Form 8-K: Termination of a Material Definitive Agreement, Completion of Acquisition or Disposition of Assets, Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing, Material Modification to Rights of Security Holders, Changes in Control of Registrant, Leadership Update, Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year, Financial Statements and Exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Introductory Note
As previously disclosed in its Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on June 20, 2023 (the “Announcement Report”), DICE Therapeutics Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of June 18, 2023, by and among the Company, Eli Lilly and Company, an Indiana corporation (“Parent”), and Durning Acquisition Corporation, a Delaware corporation (“Purchaser”) and wholly-owned subsidiary of Parent.
Pursuant to the Merger Agreement, on June 30, 2023, Purchaser commenced a tender offer (the “Offer”) to purchase all of the issued and outstanding shares (the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), at a purchase price of $48.00 per Share (the “Offer Price”), net to the stockholder in cash, without interest and less any applicable tax withholding.
The Offer and related withdrawal rights expired as scheduled at one minute past 11:59 p.m., Eastern Time, on August 8, 2023 (such date and time, the “Expiration Time”), and was not further extended. Computershare Trust Company, N.A., in its capacity as depositary and paying agent for the Offer (the “Depositary and Paying Agent”), has advised Purchaser that, as of the Expiration Time, 42,265,390 Shares had been validly tendered and not properly withdrawn pursuant to the Offer, representing approximately 88.4% of the issued and outstanding Shares as of the Expiration Time. Accordingly, the Minimum Tender Condition (as defined in the Merger Agreement) has been satisfied. As a result of the satisfaction of the Minimum Tender Condition and each of the other conditions to the Offer, on August 9, 2023, Parent and Purchaser accepted for payment the Shares that were validly tendered and not properly withdrawn pursuant to the Offer prior to the Expiration Time. Parent has transmitted payment for such Shares to the Depositary and Paying Agent, which will disburse the Offer Price to tendering Company stockholders whose Shares have been accepted for payment in accordance with the terms of the Offer.
Following the consummation of the Offer, pursuant to the terms and conditions of the Merger Agreement, in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”) and without a meeting or a vote of the Company’s stockholders, on August 9, 2023, Purchaser was merged with and into the Company (the “Merger”), with the Company surviving such Merger as a wholly-owned subsidiary of Parent.
Pursuant to the terms of the Merger Agreement, as of the effective time of the Merger (the “Effective Time”), by virtue of the Merger and without any action on the part of the holders thereof, each Share issued and outstanding immediately prior to the Effective Time (other than (i) Shares owned by the Company or any wholly-owned subsidiary of the Company immediately prior to the Effective Time, (ii) Shares owned by Parent, Purchaser or any other subsidiary of Parent or Purchaser at the commencement of the Offer and owned by Parent, Purchaser or any other subsidiary of Parent immediately prior to the Effective Time, (iii) Shares irrevocably accepted for purchase in the Offer or (iv) Shares that were held by stockholders who were entitled to demand and properly demanded appraisal for such Shares pursuant to and in compliance in all respects with Section 262 of the DGCL and did not fail to perfect or otherwise waive, withdraw or lose their rights to such appraisal with respect to such Shares under the DGCL), including each Share that was subject to vesting or repurchase rights of the Company immediately prior to the Effective Time, was converted into the right to receive an amount in cash equal to the Offer Price, without interest, from Purchaser, less any applicable tax withholding.
Pursuant to the Merger Agreement, the treatment of the Company’s equity awards was as follows:
| • | at the Effective Time, each stock option of the Company granted under a Company Stock Plan (as defined in the Merger Agreement) was canceled and converted into the right to receive an amount in cash, without interest, less any applicable tax withholding, determined by multiplying (i) the total number of Shares underlying such stock option and (ii) the excess, if any, of (x) the Offer Price over (y) the exercise price per Share underlying such stock option. Any stock options that had an exercise price per Share equal to or in excess of the Offer Price were canceled for no consideration; and |
| • | at the Effective Time, each outstanding restricted stock unit of the Company was canceled and converted into the right to receive an amount of cash, without interest, less any applicable tax withholding, determined by multiplying (i) the Offer Price by (ii) the number of Shares underlying such restricted stock unit. |
The foregoing description of the Offer, the Merger and the Merger Agreement 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 the Announcement Report and is incorporated herein by reference.
| Item 1.02 | Termination of a Material Definitive Agreement. |
On August 9, 2023, in connection with the consummation of the Merger and effective as of the Effective Time, (i) the Company terminated the Company’s 2014 Equity Incentive Plan, 2021 Equity Incentive Plan and 2021 Employee Stock Purchase Plan, and (ii) the Amended and Restated Investors’ Rights Agreement entered into as of August 20, 2021 by and among the Company and the investors listed on Schedule A thereto terminated automatically in accordance with its terms.
In addition, as previously disclosed, on April 15, 2023, the Company entered into an ATM Equity OfferingSM Sales Agreement (the “Sales Agreement”), with BofA Securities, Inc. and Stifel, Nicolaus & Company, Incorporated (the “Sales Agents”) with respect to an “at-the-market” offering program under which the Company could offer and sell, from time to time, shares of its Common Stock through the Sales Agents. Effective as of August 9, 2023, the Company terminated the Sales Agreement.
Further, in connection with the closing of the Merger, effective as of August 9, 2023, the Company terminated its Loan and Security Agreement, dated as of April 13, 2021, as amended by that certain Joinder and First Amendment to Loan and Security Agreement, dated as of June 27, 2022 by and between Silicon Valley Bank (now a division of First-Citizens Bank & Trust Company), the Company and certain of the Company’s subsidiaries, as co-borrowers.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The information contained in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On August 8, 2023, the Company (i) notified The Nasdaq Global Market (“Nasdaq”) of the anticipated consummation of the Merger and (ii) requested that Nasdaq suspend trading of the Common Stock, effective as of 8:00 p.m., Eastern Time, on August 8, 2023, and, following the Effective Time, file with the SEC a Form 25, Notification of Removal from Listing and/or Registration, to delist all the Common Stock from Nasdaq and deregister the Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company also intends to file a Certification and Notice of Termination of Registration on Form 15 with the SEC requesting the termination of registration of the Common Stock under Section 12(g) of the Exchange Act and the suspension of the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information set forth in the Introductory Note, Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 5.01 | Change in Control of Registrant. |
The information contained in the Introductory Note and Items 2.01, 5.02 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
As a result of the consummation of the Offer and the consummation of the Merger in accordance with Section 251(h) of the DGCL on August 9, 2023, a change in control of the Company occurred. At the Effective Time, the Company became a wholly-owned subsidiary of Parent. The Offer Price was funded through Parent’s cash on hand and borrowings at prevailing market interest rates under Parent’s commercial paper program.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
The information set forth in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.
In accordance with the terms of the Merger Agreement, (i) each of Lisa Bowers, Dr. Mittie Doyle, Dr. Richard Scheller, Jim Scopa, Dr. Jake Simson and Sharon Tetlow resigned from his or her respective position as a member of the Company’s board of directors and all committees thereof, effective as of the Effective Time and (ii) Philip L. Johnson, Gordon J. Brooks and Michael C. Thompson, each a director of Purchaser immediately prior to the Effective Time, became directors of the Company, in each case, effective as of the Effective Time. These resignations were tendered in connection with the Merger and not as a result of any disagreements between the Company and the resigning individuals on any matters related to the Company’s operations, policies or practices.
In accordance with the terms of the Merger Agreement, each officer of Purchaser immediately prior to the Effective Time became an officer of the Company effective as of the Effective Time. The officers of Purchaser immediately prior to the Effective Time were Philip L. Johnson as President, Chris Anderson as Secretary, Michael C. Thompson as Treasurer, Jonathan Groff as Assistant Secretary and Katie Lodato as Assistant Treasurer. Effective immediately following completion of the Merger, all of the incumbent officers of the Company, as of immediately prior to the effectiveness of the Merger, were removed as officers of the Company.
Biographical and other information with respect to Philip L. Johnson, Gordon J. Brooks, Chris Anderson, Michael C. Thompson, Jonathan Groff and Katie Lodato is set forth in Schedule I to the Offer to Purchase, a copy of which is attached as Exhibit (a)(1)(A) to the Tender Offer Statement on Schedule TO filed with the SEC by Parent on June 30, 2023 and is incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Pursuant to the terms of the Merger Agreement, the restated certificate of incorporation of the Company was amended and restated in its entirety, effective as of the Effective Time, and the bylaws of the Purchaser became the bylaws of the Company, effective as of immediately following the Effective Time. Copies of the Company’s amended and restated certificate of incorporation and amended and restated bylaws are included as Exhibits 3.1 and 3.2 hereto, respectively, each of which is incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
| Exhibit No. |
Description | |
| 2.1 | Agreement and Plan of Merger by and among DICE Therapeutics, Inc., Eli Lilly and Company and Durning Acquisition Corporation, dated June 18, 2023 (incorporated by reference to Exhibit 2.1 to DICE Therapeutics Inc.’s Current Report on Form 8-K filed with the SEC on June 20, 2023). * | |
| 3.1 | Amended and Restated Certificate of Incorporation of DICE Therapeutics, Inc. ** | |
| 3.2 | Amended and Restated Bylaws of DICE Therapeutics, Inc. ** | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
| * | Schedules and similar attachments have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule will be furnished supplementally to the SEC upon request. |
| ** | Filed herewith. |
SIGNATURES
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.
| DICE THERAPEUTICS, INC. | ||||||
| Date: August 9, 2023 | By: | /s/ Philip L. Johnson | ||||
| Philip L. Johnson President | ||||||