UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 15, 2020
Elanco Animal Health Incorporated
(Exact name of registrant as specified in its charter)
| Indiana | 001-38661 | 82-5497352 | ||
|
(State or other jurisdiction of incorporation) |
(Commission
File Number) |
(IRS Employer Identification No.) |
|
2500 Innovation Way Greenfield, Indiana (Address of principal executive offices) |
46140 (Zip Code) |
Registrant’s telephone number, including area code: (877) 352-6261
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
|
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
| Common stock, no par value | ELAN | New York Stock Exchange |
| 5.00% Tangible Equity Units | ELAT | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter)
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
On June 15, 2020, Elanco Animal Health Incorporated (“Elanco”) entered into Amendment No. 3 (the “Amendment”) to that certain Share and Asset Purchase Agreement, by and among Elanco and Bayer Aktiengesellschaft (“Bayer”), dated as of August 20, 2019. The Amendment excludes certain insecticide products in Mexico from the scope of the acquired animal health business (the “Business”) and limits the duration in Mexico of the restrictions on Bayer and its subsidiaries with respect to the conduct of certain business activities that compete with the Business. The foregoing description of the Amendment does not purport to be complete and is subject to and qualified in its entirety by reference to the full text of the document, which is attached hereto as Exhibit 2.1 and incorporated by reference herein.
Cautionary Note Regarding Forward-Looking Statements
Statements in this report that are not strictly historical, including statements regarding the transactions and any other statements regarding events or developments that we believe or anticipate will or may occur in the future, may be “forward-looking” statements within the meaning of the Private Securities Litigation Reform Act of 1995, and involve a number of risks and uncertainties. There are a number of important factors that could cause actual events to differ materially from those suggested or indicated by such forward-looking statements and you should not place undue reliance on any such forward-looking statements. These factors include risks and uncertainties related to, among other things: (1) the inability to consummate the transactions in a timely manner; (2) the failure of the transactions to close for any other reason; (3) the possibility that the integration of the Business and its operations with those of Elanco may be more difficult and/or take longer than anticipated, may be more costly than anticipated and may have unanticipated adverse results relating to the Business or Elanco’s existing businesses; (4) the effect of the announcement of the transactions on Elanco’s or Bayer’s respective business relationships, operating results and business generally; (5) diversion of Elanco and Bayer management’s attention from ongoing business concerns; (6) the ability to obtain or consummate debt or equity financing or refinancing related to the transactions upon acceptable terms or at all; (7) risks associated with third party contracts containing consent and/or other provisions that may be triggered by the transactions; (8) negative effects of the announcement or the consummation of the transactions on the market price of the Elanco Common Stock, including as it impacts the Elanco Common Stock consideration due to Bayer upon completion of the transactions; (9) the ability of Elanco to retain and hire key personnel; (10) management’s response to any of the aforementioned factors; and (11) other factors that may affect future results of Elanco described in the section entitled “Risk Factors” in Elanco’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Elanco’s other filings with the Securities and Exchange Commission. The risks and uncertainties may be amplified by the COVID-19 pandemic, which has caused significant economic uncertainty. The extent to which the COVID-19 pandemic impacts Elanco’s and Bayer’s businesses, operations, and financial results, including the duration and magnitude of such effects, will depend on numerous factors, which are unpredictable, including, but not limited to, the duration and spread of the outbreak, its severity, the actions to contain the virus or treat its impact, and how quickly and to what extent normal economic and operating conditions can resume. The forward-looking statements made herein speak only as of the date hereof and Elanco does not assume any obligation to update or revise any forward-looking statement, whether as a result of new information, future events and developments or otherwise, except as required by law.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. | Description | |
| 2.1 | Amendment No. 3 to Share and Asset Purchase Agreement, dated as of June 15, 2020, between Bayer Aktiengesellschaft and Elanco Animal Health Incorporated. | |
| 104.1 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
2
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.
| Elanco Animal Health Incorporated | ||
| Date: June 18, 2020 | By: | /s/ Michael-Bryant Hicks |
| Name: | Michael-Bryant Hicks | |
| Title: | Executive Vice President, General Counsel and Corporate Secretary | |
Exhibit 2.1
AMENDMENT NO. 3
TO SHARE AND ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 3 TO THE SHARE AND ASSET PURCHASE AGREEMENT, dated as of June 15, 2020 (this “Amendment”), is entered into between Bayer Aktiengesellschaft, a German stock corporation (“Seller Parent”), and Elanco Animal Health Incorporated, an Indiana Corporation (“Purchaser”).
W I T N E S S E T H:
WHEREAS, Seller Parent and Purchaser entered into that certain Share and Asset Purchase Agreement, dated as of August 20, 2019, as amended by Amendment No. 1 to the Share and Asset Purchase Agreement, dated as of October 15, 2019 and Amendment No. 2 to the Share and Asset Purchase Agreement, dated as of January 17, 2020 (as amended, the “Share and Asset Purchase Agreement”); and
WHEREAS the Parties desire to make certain changes to the terms of the Share and Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
Section 1. Certain Definitions.
(a) Each of the following definitions set forth in Annex 1 (Definitions) to the Share and Asset Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“Business”
means Seller Parent’s and its Subsidiaries business in the Territory, as of the date of this Agreement, of discovery, research,
development, registration, manufacturing, formulating, packaging, distributing, marketing, promotion, licensing sale and/or commercialization
for use in the Animal Health Field of pharmaceuticals (including parasiticides, antimicrobials, anti-inflammatories, analgesics,
hormones, psychotropic), specialty products (including immunomodulators, cardiovascular, antiemetics, bile and liver therapy, functional
gastrointestinal disorders, laxatives and metabolic disorder treatments), nutritionals (including vitamins, feed supplements, feed
additives, medicinal feed additives), performance enhancers, cosmetics (such as shampoos), disinfectants (including water and surface
treatments), biologicals (vaccines), diagnostics, the Animal Health Environmental Products and other products and their constituents,
(but not including (i) the Distribution Products or (ii) any Other Environmental Products).;
and provided, that the Business shall not include the Excluded Mexico Business.
(b) Each of the following definitions are hereby added to Annex 1 (Definitions) of the Share and Asset Purchase Agreement:
“Excluded Mexico Business” means Seller Parent’s and its Subsidiaries businesses in Mexico of registering, manufacturing, formulating, packaging, distributing, marketing, promotion, licensing sale and/or commercialization of the Excluded Mexico Products.
RESTRICTED
“Excluded Mexico Products” means the following finished products: (i) Bayofly EC 100ml and (ii) Bayofly CE 200.
Section 2. Non-Competition. Section 5.18(a) of the Share and Asset Purchase Agreement is hereby amended and restated in its entirety as follows:
(a) Subject
to Section 5.18(b), for a period of (i) three (3) years from the Closing Date, with respect to Mexico
and (ii) five (5) years from the Closing Date, with respect to anywhere in the world other
than Mexico, Seller Parent shall not, and shall not permit any of its Subsidiaries to, engage in any Competing Business.
anywhere in the world. For the purposes of this Section 5.18, “Competing Business” means the
marketing and sale of finished products covered by a Product Authorization for use in the Animal Health Field; provided that Competing
Business shall not include (A) the Excluded Mexico Business or the (B) marketing or sale of
any products for use in the ES Exclusion Field.
Section 3. Amended Annexes. Annex 6 (Excluded Assets) to the Share and Asset Purchase Agreement is amended as set forth on Annex A to this Amendment.
Section 4. Representations and Warranties of Seller Parent. Seller Parent represents and warrants to Purchaser:
(a) As of the date of this Amendment, Seller Parent is a stock corporation duly organized, validly existing and in good standing under the Laws of Germany.
(b) As of the date of this Amendment, Seller Parent has full corporate power and authority to execute and deliver this Amendment and to perform its obligations hereunder. The execution and delivery by Seller Parent of this Amendment and the performance of its obligations hereunder have been duly and validly authorized and no additional corporate or shareholder authorization or consent is required in connection with the execution and delivery by Seller Parent of this Amendment or the performance of its obligations hereunder.
(c) The execution and delivery by Seller Parent of this Amendment and the performance of its obligations hereunder do not and will not violate any provision of the articles of incorporation, bylaws or other organizational documents of Seller Parent.
(d) This Amendment, when duly and validly executed and delivered by Purchaser, constitutes a valid and legally binding obligation of Seller Parent, enforceable against Seller Parent in accordance with its terms.
Section 5. Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller Parent as of the date of this Amendment:
(a) Purchaser is a corporation duly organized, validly existing and in good standing under the Laws of Indiana.
(b) Purchaser has full corporate power and authority to execute and deliver this Amendment and to perform its obligations hereunder. The execution and delivery by Purchaser of this Amendment and the performance of its obligations hereunder have been duly and validly authorized and no additional corporate or shareholder authorization or consent is required in connection with the execution and delivery by Purchaser of this Amendment or the performance of its obligations hereunder.
RESTRICTED
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(c) The execution and delivery by Purchaser of this Amendment and the performance of its obligations hereunder do not and will not violate any provision of the articles of incorporation, bylaws or other organizational documents of Purchaser.
(d) This Amendment, when duly and validly executed and delivered by Seller Parent, constitutes a valid and legally binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms.
Section 6. Miscellaneous.
(a) Each reference to “herein”, “hereof,” “hereunder,” “hereby,” and “this Agreement” shall, from and after the date of this Amendment, refer to the Share and Asset Purchase Agreement, as further amended by this Amendment. Each reference herein to “the date of this Amendment” shall refer to the date set forth above and each reference to the “date of this Agreement”, the “date hereof” and similar references shall refer to August 20, 2019.
(b) Other than as expressly modified pursuant to this Amendment, all of the terms, covenants and other provisions of the Share and Asset Purchase Agreement shall continue to be in full force and effect in accordance with their respective terms.
(c) The provisions of Section 1.2, Section 1.3 and Article XI of the Share and Asset Purchase Agreement are hereby incorporated herein by reference and shall apply, mutatis mutandis, with respect to this Amendment.
RESTRICTED
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