SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13E-3
(Rule 13e-100)
Rule 13e-3 Transaction Statement under Section 13(e)
of the Securities Exchange Act of 1934
ENTASIS THERAPEUTICS HOLDINGS INC.
(Name of the Issuer)
Innoviva, Inc.
Innoviva Merger Sub, Inc.
(Name of Person(s) Filing Statement)
Common Stock, $0.001 par value per share
(Title of Classes of Securities)
293614103
(CUSIP Number of Classes of Securities)
Pavel Raifeld
Chief Executive Officer
1350 Old Bayshore Highway, Suite 400
Burlingame, CA 94010
(650) 238-9600
(Name, Address and Telephone Number of Person Authorized To Receive Notices and Communications on Behalf of the Person(s) Filing Statement)
With a copy to:
Russell Leaf
Jared Fertman
Jonathan Kubek
Willkie Farr & Gallagher LLP
787 7th Ave
New York, NY 10019
(212) 728-8000
This statement is filed in connection with (check the appropriate box):
| a. |
☐ | The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934. |
| b. | ☐ | The filing of a registration statement under the Securities Act of 1933. |
| c. |
☒ | A tender offer. |
| d. | ☐ | None of the above. |
Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☐
Check the following box if the filing is a final amendment reporting the results of the transaction: ☐
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THIS TRANSACTION, PASSED UPON THE MERITS
OR FAIRNESS OF THIS TRANSACTION, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS SCHEDULE 13E-3. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (this “Statement”) is being filed by Innoviva, Inc. (“Parent” or “Innoviva”)
and by its wholly owned subsidiary, Innoviva Merger Sub, Inc., a Delaware corporation (“Purchaser”), and relates to Purchaser’s offer to purchase all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”)
of Entasis Therapeutics Holdings Inc., a Delaware corporation (“Entasis”), the issuer of the common stock that is the subject of the Rule 13e-3 transaction described below (other than any Shares owned at the commencement of the
Offer (as defined below) by (i) Innoviva, Purchaser or any other direct or indirect wholly owned subsidiary of Innoviva and (ii) Entasis (or held in Entasis’ treasury)), at a price of $2.20 per Share, net to the seller in cash, without interest and
subject to any withholding of taxes in accordance with the Merger Agreement (as defined below), upon the terms and subject to the conditions set forth in the Offer to Purchase dated June 7, 2022 (the “Offer to Purchase”), which is annexed to
and filed with this Statement as Exhibit (a)(1)(A), and in the related Letter of Transmittal, which is annexed to and filed with this Statement as Exhibit (a)(1)(B), which, together with any amendments or supplements thereto, collectively constitute
the “Offer.” The Offer is being made pursuant to that certain Agreement and Plan of Merger, dated as of May 23, 2022, by and among Entasis, Purchaser and Innoviva (the “Merger Agreement”). The Merger Agreement provides, among other
things, for the terms and conditions of the Offer and the subsequent merger of Purchaser with and into Entasis (the “Merger”) in accordance with Section 251(h) of the Delaware General Corporation Law (the “DGCL”).
The information contained in the Tender Offer Statement filed under cover of Schedule TO by Innoviva with the U.S. Securities and Exchange Commission (the
“SEC”) on June 7, 2022, (as amended or supplemented from time to time, the “Schedule TO”), the Offer to Purchase and the Solicitation/Recommendation Statement on Schedule 14D-9 filed by Entasis with the SEC on June 7, 2022, a copy of
which is attached hereto as Exhibit (a)(2)(A) (as amended or supplemented from time to time, the “Schedule 14D-9”), is incorporated by reference herein and, except as described below, the responses to each item in this Statement are qualified
in their entirety by the information contained in the Schedule TO, the Offer to Purchase and the Schedule 14D-9. The cross references identified herein are being supplied pursuant to General Instruction G to Schedule 13E-3 and indicate the location
in the Schedule TO and Schedule 14D-9 of the information required to be included in response to the respective Items of this Statement.
Any information contained in the documents incorporated herein by reference shall be deemed modified or superseded for purposes of this Statement to the
extent that any information contained herein modifies or supersedes such information. All information contained in this Statement concerning Purchaser, Innoviva or their affiliates has been provided by such person and not by any other person.
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ITEM 1.
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SUMMARY TERM SHEET
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The information set forth in the section of the Offer to Purchase entitled “Summary Term Sheet” is incorporated herein by reference.
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ITEM 2.
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SUBJECT COMPANY INFORMATION
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(a)
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Name and Address
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The name of the subject company is Entasis Therapeutics Holdings Inc., a Delaware corporation. The address of the Entasis’ principal executive office is 35
Gatehouse Drive, Waltham, Massachusetts 02451, and the telephone number at such office is (781) 810-0120.
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(b)
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Securities
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The title of the class of equity securities to which this Statement relates is Entasis’ Shares. As of June 3, 2022, there were 47,851,779 Shares issued and
outstanding.
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(c)
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Trading Market and Price
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The information set forth in the Offer to Purchase under the heading “The Tender Offer—Section 6. Price Range of Shares; Dividends” is incorporated herein
by reference.
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(d)
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Dividends
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The information set forth in the Offer to Purchase under the heading “The Tender Offer—Section 6. Price Range of Shares; Dividends” and “The Tender
Offer—Section 16. Dividends and Distributions” is incorporated herein by reference.
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(e)
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Prior Public Offerings
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Not applicable.
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(f)
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Prior Stock Purchases
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The information set forth in the Schedule 14D-9 under the heading “Item 3. Past Contracts, Transactions, Negotiations and Agreements—Arrangements between
the Company, Innoviva and Certain of its Affiliates—Prior Investments” is incorporated herein by reference.
During the past two years, Innoviva made the following purchases of Shares and warrants to purchase Shares:
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•
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Pursuant to that certain Securities Purchase Agreement, dated as of April 12, 2020, by and between Innoviva and Entasis, (i) on April 22, 2020, Innoviva purchased
1,322,510 Shares and warrants to purchase 1,322,510 Shares and (ii) on June 11, 2020, Innoviva purchased 12,677,490 Shares and warrants to purchase 12,677,490 Shares (each Share and warrant were sold together as a unit) for a per unit price
of $2.50 in a private placement; and
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•
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Pursuant to that certain Securities Purchase Agreement, dated as of August 27, 2020, by and among Entasis and the investors named therein, including Innoviva, on
September 1, 2020, Innoviva purchased 4,672,897 Shares and warrants to purchase 4,672,879 Shares (each Share and warrant were sold together as a unit) for a per unit price of $2.675 in a private placement.
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2
During the past two years, Innoviva Strategic Opportunities LLC (“ISO”), a wholly owned subsidiary of Innoviva, made the following
purchases of Shares, warrants to purchase Shares, and related securities:
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•
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Pursuant to that certain Securities Purchase Agreement, dated as of May 3, 2021, by and between Entasis and ISO, (i) on May 3, 2021, ISO purchased 3,731,025 Shares
and warrants to purchase 3,371,025 Shares and (ii) on June 11, 2021, ISO purchased 6,268,975 Shares and warrants to purchase 6,268,975 Shares (each Share and warrant were sold together as a unit) for a per unit price of $2.00 in a private
placement; and
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•
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Pursuant to that certain Securities Purchase Agreement, dated as of February 17, 2022, by and between Entasis and ISO, on February 17, 2022, ISO purchased a
convertible promissory note for $15,000,000 that is convertible at maturity at the election of Entasis or ISO into Shares at a conversion price of $1.48 per Share and warrants to purchase an equal number of Shares with an exercise price of
$1.48 per Share.
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The range of prices paid is a low of $1.48 per Share and a high of $2.675 per Share. The average purchase price for each quarter was: (i) $2.50 per Share
for Q2 2020; (ii) $2.675 per Share for Q3 2020; (iii) $2.00 per Share for Q2 2021; and (iv) $1.48 for Q1 2022.
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ITEM 3.
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IDENTITY AND BACKGROUND OF FILING PERSON
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(a)
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Name and Address
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The filing persons are Innoviva and the Purchaser. The business address and telephone number of each of Innoviva and the Purchaser is 1350 Old Bayshore
Highway, Suite 400, Burlingame, California 94010, (650) 238-9600.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 8. Certain Information Concerning Parent and Purchaser” and
“Schedule I—Certain Information Concerning the Directors and Executive Officers of Innoviva, Inc.” and Schedule I—Certain Information Concerning the Directors and Executive Officers of Innoviva Merger Sub, Inc.” is incorporated herein by reference.
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(b)
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Business and Background of Entities
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The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 8. Certain Information Concerning Purchaser and Innoviva”
and “Schedule I—Certain Information Concerning the Directors and Executive Officers of Innoviva, Inc.” and Schedule I—Certain Information Concerning the Directors and Executive Officers of Innoviva Merger Sub, Inc.” is incorporated herein by
reference.
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(c)
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Business and Background of Natural Persons
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The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 8. Certain Information Concerning Purchaser and Innoviva”
and “Schedule I—Certain Information Concerning the Directors and Executive Officers of Innoviva, Inc. and Schedule I—Certain Information Concerning the Directors and Executive Officers of Innoviva Merger Sub, Inc.” is incorporated herein by
reference.
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ITEM 4.
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TERMS OF THE TRANSACTION
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(a)
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Material Terms
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The information set forth in the Schedule 14D-9 under the headings “Item 1. Subject Company Information—Securities,” “Item 2. Identity and Background of
Filing Person—Tender Offer and Merger,” “Item 3. Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The Solicitation or Recommendation,” “Item 7. Purposes of the Transaction and Plans or Proposals,” and “Item 8. Additional
Information—Appraisal Rights—Anti-Takeover Statutes—Regulatory Approvals—Stockholder Approval Not Required” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 1. Terms of the Offer,” “The Tender Offer—Section 2.
Acceptance for Payment and Payment for Shares,” “The Tender Offer—Section 3. Procedures for Accepting the Offer and Tendering Shares,” “The Tender Offer—Section 4. Withdrawal Rights” “The Tender Offer—Section 5. Certain United States Federal Income
Tax Consequences” “The Tender Offer—Section 11. The Merger Agreement; Other Agreements—The Merger Agreement,” “The Tender Offer—Section 12. Purpose of the Offer; Plans for Entasis—Purpose of the Offer,” and “The Tender Offer—Section 15. Certain
Effects of the Offer” is incorporated herein by reference.
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(b)
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Different Terms
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The Solicitation or Recommendation,” “Item 7. Purposes of the Transaction and Plans or Proposals,” “Item 8. Additional Information,” and “Annex C—Section 262 of the Delaware
General Corporation Law” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 8. Certain Information Concerning Parent and Purchaser,”
“The Tender Offer—Section 10. Background of the Offer; Past Contacts or Negotiations with Entasis,” “The Tender Offer—Section 11. The Merger Agreement; Other Agreements—Tender and Support Agreements,” “The Tender Offer—Section 20. Transactions and
Arrangements Concerning the Shares and Other Securities of Entasis, “The Tender Offer—Section 21. Certain Agreements between Parent and its Affiliates and Entasis,” “The Tender Offer—Section 22. Interests of Certain Entasis Directors and Executive
Officers in the Offer and the Merger,” and “Schedule III—General Corporation Law of Delaware Section 262 Appraisal Rights” is incorporated herein by reference.
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(c)
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Appraisal Rights
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 4. The
Solicitation or Recommendation—Reason for the Recommendation of the Entasis Board; Fairness of the Offer and the Merger,” “Item 8. Additional Information—Appraisal Rights,” and “Annex C—Section 262 of the Delaware General Corporation Law” is
incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 19. Appraisal Rights; Rule 13e-3” and “Schedule III—General
Corporation Law of Delaware Section 262 Appraisal Rights” is incorporated herein by reference.
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(d)
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Provisions for Unaffiliated Security Holders
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The filing persons have not made any provision in connection with the transaction to grant unaffiliated security holders access to the corporate files of
the filing persons or to obtain counsel or appraisal services at the expense of the filing persons.
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(e)
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Eligibility for Listing or Trading
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Not applicable.
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ITEM 5.
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PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
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(a)
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Transactions
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements,” and “Item 4. The Solicitation or Recommendation” is incorporated herein by reference.
The information set forth in Item 2(f) above is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “Summary Term Sheet,” “The Tender Offer—Section 8. Certain Information Concerning
Parent and Purchaser,” “The Tender Offer—Section 10. Background of the Offer; Past Contracts or Negotiations with Entasis,” “The Tender Offer—Section 11. The Merger Agreement; Other Agreements—Tender and Support Agreements,” “The Tender Offer—Section
20. Transactions and Arrangements Concerning the Shares and Other Securities of Entasis,” and “The Tender Offer—Section 21. Certain Agreements between Parent and its Affiliates and Entasis” is incorporated herein by reference.
(b)—(c) Significant
Corporate Events; Negotiations or Contacts
The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The Solicitation or Recommendation,” and “Item 7. Purposes of the Transaction and Plans or Proposals” is incorporated herein by reference.
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The information set forth in the Offer to Purchase under the headings “Summary Term Sheet,” “The Tender Offer—Section 8. Certain Information Concerning
Parent and Purchaser,” “The Tender Offer—Section 10. Background of the Offer; Past Contracts or Negotiations with Entasis,” “The Tender Offer—Section 11. The Merger Agreement; Other Agreements,” “The Tender Offer—Section 12. Purpose of the Offer;
Plans for Entasis,” “The Tender Offer—Section 20. Transactions and Arrangements Concerning the Shares and Other Securities of Entasis,” and “The Tender Offer—Section 21. Certain Agreements between Parent and its Affiliates and Entasis” is
incorporated herein by reference.
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(e)
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Agreements Involving the Subject Company’s Securities
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements—Arrangements between the Company, Innoviva and Certain of its Affiliates,” “Item 4. The Solicitation or Recommendation,” and “Item 7. Purposes of the Transaction and Plans or Proposals” is
incorporated herein by reference.
The information set forth in Item 2(f) above is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “Summary Term Sheet,” “The Tender Offer—Section 8. Certain Information Concerning
Parent and Purchaser,” “The Tender Offer—Section 10. Background of the Offer; Past Contracts or Negotiations with Entasis,” “The Tender Offer—Section 11. The Merger Agreement; Other Agreements; Tender and Support Agreements,” “The Tender
Offer—Section 12. Purpose of the Offer; Plans for Entasis,” “The Tender Offer—Section 20. Transactions and Arrangements Concerning the Shares and Other Securities of Entasis,” and “The Tender Offer—Section 21. Certain Agreements between Parent and
its Affiliates and Entasis” is incorporated herein by reference.
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ITEM 6.
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PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS
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(b)
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Use of Securities Acquired
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The information set forth in the Offer to Purchase under the headings “Section 11. The Merger Agreement; Other Agreements; Merger Agreement; Effect on
Capital Stock; Treatment of Options; Treatment of Restricted Stock Units; Treatment of Stock Plan; Treatment of Company Equity Awards,” “Section 12. Purpose of the Offer; Plans for Entasis,” and “Section 15. Certain Effects of the Offer” is
incorporated herein by reference.
(c)(1)—(8) Plans
The information set forth in the Schedule 14D-9 under the headings and “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The Solicitation or Recommendation,” and “Item 7. Purposes of the Transaction and Plans or Proposals” is incorporated herein by reference.
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The information set forth in the Offer to Purchase under the headings “Summary Term Sheet,” “The Tender Offer—Section 9. Source and Amount of Funds,” “The
Tender Offer—Section 10. Background of the Offer; Past Contacts or Negotiations with Entasis,” “The Tender Offer—Section 11. The Merger Agreement; Other Agreements,” “The Tender Offer—Section 12. Purpose of the Offer; Plans for Entasis,” “The Tender
Offer—Section 15. Certain Effects of the Offer,” “The Tender Offer—Section 16. Dividends and Distributions;” and “The Tender Offer—Section 22. Interests of Certain Entasis Directors and Executive Officers in the Offer and Merger” is incorporated
herein by reference.
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ITEM 7.
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PURPOSES, ALTERNATIVES, REASONS AND EFFECTS
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(a)
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Purposes
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The Solicitation or Recommendation,” “Item 7. Purposes of the Transaction and Plans or Proposals,” and “Item 8. Additional Information—Stockholder Approval Not Required” is
incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 8. Certain Information Concerning Parent and Purchaser,”
“The Tender Offer—Section 12. Purpose of the Offer; Plans for Entasis,” and “The Tender Offer—Section 15. Certain Effects of the Offer” is incorporated herein by reference.
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(b)
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Alternatives
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The information set forth in the Schedule 14D-9 under the headings “Item 3. Past Contracts, Transactions, Negotiations and Agreements—Arrangements between
the Company, Innoviva and Certain of its Affiliates,” “Item 4. The Solicitation or Recommendation,” and “Item 7. Purposes of the Transaction and Plans or Proposals” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 10. Background of the Offer; Past Contracts or Negotiations
with Entasis” and “The Tender Offer—Section 12. Purpose of the Offer; Plans for Entasis” is incorporated herein by reference.
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(c)
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Reasons
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The Solicitation or Recommendation,” “Item 7. Purposes of the Transaction and Plans or Proposals,” and “Item 8. Additional Information—Stockholder Approval Not Required” is
incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 10. Background of the Offer; Past Contracts or Negotiations
with Entasis,” “The Tender Offer—Section 12. Purpose of the Offer; Plans for Entasis,” and “The Tender Offer—Section 15. Certain Effects of the Offer” is incorporated herein by reference.
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(d)
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Effects
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The Solicitation or Recommendation,” “Item 7. Purposes of the Transaction and Plans or Proposals,” and “Item 8. Additional Information” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 1. Terms of the Offer,” “The Tender Offer—Section 5.
Certain United States Federal Income Tax Consequences,” “The Tender Offer—Section 8. Certain Information Concerning Parent and Purchaser,” “The Tender Offer—Section 9. Source and Amount of Funds,” “The Tender Offer—10. Background of the Offer; Past
Contracts or Negotiations with Entasis,” “The Tender Offer—11. The Merger Agreement; Other Agreements,” “The Tender Offer—12. Purpose of the Offer; Plans for Entasis,” “The Tender Offer—15. Certain Effects of the Offer,” “The Tender Offer—Section 16.
Dividends and Distributions,” “The Tender Offer—Section 19. Appraisal Rights; Rule 13e-3,” “The Tender Offer—Section 22. Interests of Certain Entasis Directors and Executive Officers in the Offer and the Merger,” and “The Tender Offer—Section 23.
Fees and Expenses” is incorporated herein by reference.
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ITEM 8.
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FAIRNESS OF THE TRANSACTION
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(a)
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Fairness
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The information set forth in the Schedule 14D-9 under the headings “Item 3. Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The
Solicitation or Recommendation,” “Item 5. Person/Assets, Retained, Employed, Compensated or Used,” “Item 7. Purposes of the Transaction and Plans or Proposals,” and “Item 8. Additional Information” is incorporated herein by reference.
Innoviva and Purchaser reasonably believe that the terms of the Merger Agreement and the Offer are fair to the unaffiliated stockholders.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—10. Background of the Offer; Past Contracts or Negotiations with
Entasis,” “The Tender Offer—11. The Merger Agreement; Other Agreements,” “The Tender Offer—12. Purpose of the Offer; Plans for Entasis,” “The Tender Offer—Section 13. The Recommendation by the Board of Directors of Entasis” “The Tender Offer—Section
14. Position of Parent and Purchaser Regarding Fairness of the Offer and the Merger” is incorporated herein by reference.
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(b)
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Factors Considered in Determining Fairness
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The information set forth in the Schedule 14D-9 under the heading “Item 3. Past Contracts, Transactions, Negotiations and Agreements,” “Item 4. The
Solicitation or Recommendation,” “Item 5. Person/Assets, Retained, Employed, Compensated or Used,” “Item 7. Purposes of the Transaction and Plans or Proposals,” and “Item 8. Additional Information” is incorporated herein by reference.
9
The information set forth in the Offer to Purchase under the headings “The Tender Offer—10. Background of the Offer; Past Contracts or Negotiations with
Entasis,” “The Tender Offer—11. The Merger Agreement; Other Agreements,” “The Tender Offer—12. Purpose of the Offer; Plans for Entasis,” “The Tender Offer—Section 13. The Recommendation by the Board of Directors of Entasis,” and “The Tender
Offer—Section 14. Position of Parent and Purchaser Regarding Fairness of the Offer and the Merger” is incorporated herein by reference.
The information set forth in Exhibits (c)(1) and (c)(2) is incorporated herein by reference.
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(c)
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Approval of Security Holders
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The information set forth in the Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger” and “Item 8.
Additional Information—Stockholder Approval Not Required” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “Summary Term Sheet,” “The Tender Offer—11. The Merger Agreement; Other Agreements”
and “Section 12. Purpose of the Offer; Plans for Entasis” is incorporated herein by reference.
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(d)
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Unaffiliated Representative
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The information set forth in the Schedule 14D-9 under the heading “Item 4. The Solicitation or Recommendation” is incorporated herein by reference.
No unaffiliated representative has been retained to act solely on behalf of unaffiliated security holders for purposes of negotiating the terms of this
transaction and/or preparing a report concerning the fairness of the transaction.
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(e)
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Approval of Directors
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The information set forth in the Schedule 14D-9 under the headings “Item 4. The Solicitation or Recommendation” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 10. Background of the Offer; Past Contracts of Negotiations
with Entasis” and “The Tender Offer—Section 13. The Recommendation by the Board of Directors of Entasis” is incorporated herein by reference.
None of the directors on the board of directors of Entasis have been appointed by Innoviva. The Merger Agreement and Offer were approved by a majority of
the directors of Entasis who are not employees of Entasis.
10
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(f)
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Other Offers
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None.
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ITEM 9.
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REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS
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(a)
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Report, Opinion or Appraisal
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The information set forth in the Schedule 14D-9 under the headings “Item 4. The Solicitation or Recommendation” and “Item 5. Person/Assets, Retained,
Employed, Compensated or Used” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 10. Background of the Offer; Past Contacts or Negotiations
with Entasis,” “The Tender Offer—Section 13. The Recommendation by the Board of Directors of Entasis,” and “The Tender Offer—Section 14. Position of Parent and Purchaser Regarding Fairness of the Offer and the Merger” and Exhibit (c)(1) hereto is
incorporated herein by reference.
The information set forth in Exhibits (c)(1) and (c)(2) is incorporated herein by reference.
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(b)
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Preparer and Summary of the Report, Opinion or Appraisal
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The information set forth in the Schedule 14D-9 under the headings “Item 4. The Solicitation or Recommendation” and “Item 5. Person/Assets, Retained,
Employed, Compensated or Used” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 10. Background of the Offer; Past Contacts or Negotiations
with Entasis,” “The Tender Offer—Section 13. The Recommendation by the Board of Directors of Entasis,” “The Tender Offer—Section 14. Position of Parent and Purchaser Regarding Fairness of the Offer and the Merger” and Exhibit (c)(1) hereto is
incorporated herein by reference.
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(c)
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Availability of Documents
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The reports, opinions or appraisals referenced in this Item 9 are available for inspection and copying at Entasis’ principal executive offices located at
35 Gatehouse Drive, Waltham, MA 02451, during regular business hours, by any interested stockholder of Entasis or a representative of such interested stockholder who has been so designated in writing by such interested stockholder.
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ITEM 10.
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SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION
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(a)
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Source of Funds
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The information set forth in the Offer to Purchase under the heading “Summary Term Sheet,” “The Tender Offer—Section 9. Source and Amount of Funds,” and
“The Tender Offer—Section 11. The Merger Agreement; Other Agreements” is incorporated herein by reference.
11
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(b)
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Conditions
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The information set forth in the Offer to Purchase under the headings “Summary Term Sheet” and “The Tender Offer—Section 9. Source and Amount of Funds” is
incorporated herein by reference.
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(c)
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Expenses
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The information set forth in the Schedule 14D-9 under the headings “Item 4. The Solicitation or Recommendation” and “Item 5. Person/Assets, Retained,
Employed, Compensated or Used” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the heading “The Tender Offer—23. Fees and Expenses” is incorporated herein by reference.
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(d)
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Borrowed Funds
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Not applicable.
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ITEM 11.
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INTEREST IN SECURITIES OF THE SUBJECT COMPANY
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(a)
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Securities Ownership
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The information set forth in Schedule 14D-9 under the headings “Item 2. Identity and Background of Filing Person—Tender Offer and Merger,” “Item 3.
Arrangements between the Company, Innoviva and Certain of its Affiliates—Prior Investments,” and “Item 4. The Solicitation or Recommendation—Background of the Offer and the Merger” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 8. Certain Information Concerning Purchaser and Innoviva”
is incorporated herein by reference. The address for ISO is 1350 Old Bayshore Highway, Suite 400, Burlingame, CA 94010.
|
(b)
|
Securities Transactions
|
The information set forth in Schedule 14D-9 under the headings “Item 3. Past Contracts, Transactions, Negotiations and Agreements—Arrangements between the
Company, Innoviva and Certain of its Affiliates” and “Item 6. Interest in Securities of the Subject Company” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “The Tender Offer—Section 20. Transactions and Arrangements Concerning the Shares and
Other Securities of Entasis” and “Schedule II – Security Ownership and Transactions in the Shares by Parent, Purchaser and their Respective Directors and Executive Officers” is incorporated herein by reference.
12
|
ITEM 12.
|
THE SOLICITATION OR RECOMMENDATION
|
|
(d)
|
Intent to Tender or Vote in a Going-Private Transaction
|
The information set forth in the Schedule 14D-9 under the headings “Item 3. Past Contracts, Transactions, Negotiations and Agreements—Tender and Support
Agreements” and “Item 4. The Solicitation or Recommendation” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the headings “Summary Term Sheet,” “The Tender Offer—Section 11. The Merger Agreement; Other
Agreements—Tender and Support Agreements,” and “The Tender Offer—Section 13. The Recommendation by the Board of Directors of Entasis” is incorporated herein by reference.
|
(e)
|
Recommendations of Others
|
The information set forth in the Schedule 14D-9 under the headings “Item 3. Past Contracts, Transactions, Negotiations and Agreements—Tender and Support
Agreements” and “Item 4. The Solicitation or Recommendation” is incorporated herein by reference.
The information set forth in the Offer to Purchase under the heading “Summary Term Sheet” and “The Tender Offer—Section 13. The Recommendation by the Board
of Directors of Entasis” is incorporated herein by reference.
|
ITEM 13.
|
FINANCIAL STATEMENTS
|
|
(a)
|
Financial Information
|
The information set forth in the Offer to Purchase under the heading “The Tender Offer—Section 8. Certain Information Concerning Entasis” is incorporated
herein by reference.
The audited financial statements of Entasis as of and for the fiscal years ended December 31, 2021 and December 31, 2020 are incorporated herein by
reference to Item 8 of Entasis’ Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed with the SEC on March 3, 2022. The unaudited consolidated financial statements of Entasis for the three months ended March 31, 2022 are
incorporated herein by reference to Item 1 of Entasis’ Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2022, filed with the SEC on April 27, 2022. The book value per share of common stock, par value $0.001 per share, of Entasis
as of March 31, 2022 is $0.35.
|
(b)
|
Pro Forma Information
|
Not applicable.
13
|
ITEM 14.
|
PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED
|
|
(a)
|
Solicitations or Recommendations
|
The information set forth in the Schedule 14D-9 under the heading “Item 5. Person/Assets, Retained, Employed, Compensated or Used” is incorporated herein
by reference.
The information set forth in the Offer to Purchase under the heading “The Tender Offer—23. Fees and Expenses” is incorporated herein by reference.
|
(b)
|
Employees and Corporate Assets
|
Neither Innoviva nor Purchaser employed or used any officer, employee or corporate assets of Entasis in connection with the transaction.
The information set forth in the Schedule 14D-9 under the heading “Item 5. Person/Assets, Retained, Employed, Compensated or Used” is incorporated herein
by reference.
The information set forth in the Offer to Purchase under the heading “The Tender Offer—23. Fees and Expenses” is incorporated herein by reference.
|
ITEM 15.
|
ADDITIONAL INFORMATION
|
|
(b)
|
Golden Parachute Compensation
|
The information set forth in the Schedule 14D-9 under the heading “Item 3. Past Contracts, Transactions, Negotiations and Agreements—Arrangements with the
Company’s Directors and Executive Officers—Golden Parachute Compensation” is incorporated herein by reference.
|
(c)
|
Other Material Information
|
None.
14
|
ITEM 16.
|
EXHIBITS
|
The following exhibits are filed herewith:
|
Exhibit No.
|
Description
|
|
(a)(1)(A)
|
Offer to Purchase, dated June 7, 2022 (incorporated herein by reference to Exhibit (a)(1)(A) to the Schedule TO).
|
|
(a)(1)(B)
|
Form of Letter of Transmittal (incorporated herein by reference to Exhibit (a)(1)(B) to the Schedule TO).
|
|
(a)(1)(C)
|
Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated herein by reference to Exhibit (a)(1)(C) to the Schedule TO).
|
|
(a)(1)(D)
|
Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (incorporated herein by reference to Exhibit (a)(1)(D) to the Schedule TO).
|
|
(a)(1)(E)
|
Summary Advertisement, published June 7, 2022 in the Wall Street Journal (incorporated by reference to Exhibit (a)(1)(E) to the Schedule TO).
|
|
(a)(2)(A)
|
Solicitation/Recommendation Statement on Schedule 14D-9 (incorporated by reference to Schedule 14D-9 filed by Entasis with the SEC on June 7, 2022.
|
|
(a)(5)(A)
|
Joint Press Release issued by Entasis and Innoviva on May 23, 2022 (incorporated by reference to Exhibit 99.1 to the Entasis’ Current Report on Form 8-K filed with the SEC on May 23, 2022).
|
|
(a)(5)(B)
|
Innoviva Acquisition and Integration FAQs, dated May 23, 2022 (incorporated by reference to Schedule TO-C filed by Innoviva with the SEC on May 24, 2022).
|
|
(a)(5)(C)
|
Innoviva Transaction Discussion Materials Presented at Entasis Town Hall on May 23, 2022 (incorporated by reference to Schedule TO-C filed by Innoviva with the SEC on May 24, 2022).
|
|
(a)(5)(D)
|
Key Messages for Project Elephant Day 1 Communications, dated May 23, 2022 (incorporated by reference to Schedule TO-C filed by Innoviva with the SEC on May 24, 2022).
|
|
(a)(5)(E)
|
Employee email from Pavel Raifeld, provided on May 23, 2022 (incorporated by reference to Schedule TO-C filed by Innoviva with the SEC on May 24, 2022).
|
|
(b)
|
None.
|
|
(c)(1)
|
Opinion of MTS Securities, LLC, dated May 22, 2022 (incorporated by
reference to Annex B of the Schedule 14D-9).
|
|
Presentation Titled “Project Ebony—Valuation Analysis,” dated May 22, 2022, Presented to the Board of Directors of Entasis.
|
|
|
(d)(1)
|
Agreement and Plan of Merger, dated as of May 23, 2022, among Entasis, Innoviva and Purchaser (incorporated by reference to Exhibit 2.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed
with the SEC on May 23, 2022).
|
|
(d)(2)
|
Form of Tender and Support Agreement for the Entasis’ Directors and Officers (incorporated herein by reference to Exhibit 99.2 to Innoviva’s Current Report on Form 8-K (File No. 000-30319), filed with the SEC
on May 24, 2022).
|
|
(d)(3)
|
Tender and Support Agreement, dated May 23, 2022, by and among Innoviva, Merger Sub and TPG GP A, LLC (incorporated herein by reference to Exhibit 99.1 to Innoviva’s Current Report on Form 8-K (File No.
000-30319), filed with the SEC on May 24, 2022).
|
15
|
(d)(4)
|
Securities Purchase Agreement, dated February 17, 2022, by and between Entasis and ISO (incorporated herein by reference to Exhibit 10.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed
with the SEC on February 18, 2022).
|
|
(d)(5)
|
Securities Purchase Agreement, dated May 3, 2021, by and between the Entasis and ISO (incorporated herein by reference to Exhibit 10.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with
the SEC on May 3, 2021).
|
|
(d)(6)
|
Securities Purchase Agreement, by and between Entasis and the Investors named therein, dated August 27, 2020 (incorporated herein by reference to Exhibit 10.1 to the Entasis’ Current Report on Form 8-K (File
No. 001-38670), filed with the SEC on September 1, 2020).
|
|
(d)(7)
|
Securities Purchase Agreement, by and between Entasis and Innoviva, dated April 12, 2020 (incorporated herein by reference to Exhibit 10.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed
with the SEC on April 13, 2020).
|
|
(d)(8)
|
Registration Rights Agreement, dated February 18, 2022 by and between Entasis and Innoviva (incorporated herein by reference to Exhibit 10.2 to the Entasis’ Current Report on Form 8-K (File No. 001-38670),
filed with the SEC on February 18, 2022).
|
|
(d)(9)
|
Registration Rights Agreement, by and between Entasis and ISO, dated May 3, 2021 (incorporated herein by reference to Exhibit 10.2 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the
SEC on May 3, 2021).
|
|
(d)(10)
|
Registration Rights Agreement, by and between Entasis and the Investors named therein, dated September 1, 2020 (incorporated herein by reference to Exhibit 10.2 to the Entasis’ Current Report on Form 8-K (File
No. 001-38670), filed with the SEC on September 1, 2020).
|
|
(d)(11)
|
Registration Rights Agreement, by and between Entasis and Innoviva, Inc., dated April 22, 2020 (incorporated herein by reference to Exhibit 4.1 to the Entasis’ Current Report on Form 8-K (File No.
001-38670), filed with the SEC on April 22, 2020).
|
|
(d)(12)
|
Form of Warrant Certificate (incorporated herein by reference to Exhibit 4.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the SEC on April 13, 2020).
|
|
(d)(13)
|
Form of Common Stock Purchase Warrant (incorporated herein by reference to Exhibit 4.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the SEC on September 1, 2020).
|
|
(d)(14)
|
Form of Pre-Funded Common Stock Purchase Warrant (incorporated herein by reference to Exhibit 4.2 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the SEC on September 1, 2020).
|
|
(d)(15)
|
Form of Common Stock Purchase Warrant (incorporated herein by reference to Exhibit 4.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the SEC on May 3, 2021).
|
|
(d)(16)
|
Convertible Promissory Note, dated February 18, 2022 (incorporated herein by reference to Exhibit 4.1 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the SEC on February 18, 2022).
|
|
(d)(17)
|
Form of Warrant Certificate (incorporated herein by reference to Exhibit 4.2 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the SEC on February 18, 2022).
|
|
(d)(18)
|
Investor Rights Agreement, by and between Entasis and Innoviva, dated April 22, 2020 (incorporated herein by reference to Exhibit 10.1 to the Entasis’ Current Report on Form 8-K (File No.
001-38670), filed with the SEC on April 22, 2020).
|
|
(d)(19)
|
Amendment No. 1 to Investor Rights Agreement, by and between Entasis and Innoviva, dated May 23, 2022 (incorporated by reference to Exhibit 10.1 to the Entasis’ Current Report on Form 8-K (File
No. 001-38670), filed with the SEC on May 23, 2022).
|
|
(d)(20)
|
Form of Voting Agreement, between Innoviva and the stockholder party thereto (incorporated herein by reference to Exhibit 10.2 to the Entasis’ Current Report on Form 8-K (File No. 001-38670), filed with the SEC on April 13, 2020).
|
|
(f)
|
Schedule III to the Offer to Purchase, dated June 7, 2022 (incorporated herein by reference to Exhibit (a)(1)(A) to the Schedule TO).
|
|
(g)
|
None.
|
|
Calculation of Filing Fee Tables.
|
16
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.
Dated: June 7, 2022
|
|
INNOVIVA, INC. | |
|
|
|
|
|
|
By: |
/s/ Pavel Raifeld |
|
|
Name: |
Pavel Raifeld |
|
|
Title: |
Chief Executive Officer |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Pavel Raifeld |
|
|
Name: |
Pavel Raifeld |
|
|
Title: |
President |
17
Exhibit 99(c)(2)
Exhibit 107
Calculation of Filing Fee Table
Table 1 - Transaction Valuation
|
Transaction
valuation |
Fee Rate
|
Amount of Filing
Fee |
||||||||||
|
Fees to Be Paid
|
$
|
69,453,247.60
|
(1)
|
0.0000927
|
$
|
6,438.32
|
(2)
|
|||||
|
Fees Previously Paid
|
$
|
69,453,247.60
|
$
|
6,438.32
|
(3)
|
|||||||
|
Total Transaction Valuation
|
$
|
69,453,247.60
|
||||||||||
|
Total Fees Due for Filing
|
$
|
0
|
||||||||||
|
Total Fees Previously Paid
|
$
|
6,438.32
|
||||||||||
|
Total Fee Offsets
|
$
|
6,438.32
|
||||||||||
|
Net Fee Due
|
$
|
0
|
||||||||||
Table 2 – Fee Offset Claims and Sources
|
Registrant
or Filer
Name
|
Form or
Filing Type
|
File Number
|
Initial Filing
Date |
Filing Date
|
Fee Offset
Claimed |
Fee Paid with
Fee Offset Source |
||||||||||||
|
Fee Offset Claims
|
SC TO-T
|
005-90651 |
June 7, 2022
|
$6,438.32
|
||||||||||||||
|
Fee Offset Sources
|
Innoviva, Inc.
|
SC TO-T
|
005-90651 |
June 7, 2022
|
$6,438.32
|
(3) |
||||||||||||
|
(1)
|
For purposes of calculating the filing fee pursuant to Rule 0-11(d) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Transaction Valuation was calculated by multiplying (a) $2.20, the
tender offer price per Share (as defined below), by (b) the sum of (i) 19,178,882 shares of common stock, par value $0.001 per share (the “Shares”), of Entasis Therapeutics Holdings Inc. (“Entasis”), calculated as 47,851,779 Shares that are
issued and outstanding less 28,672,897 Shares, which represents (A) Shares owned by Innoviva Inc. (“Innoviva”), Innoviva Strategic Opportunities LLC (“ISO”) or any other direct or indirect wholly owned subsidiary of Innoviva, (B) owned by
Entasis (including Shares held in treasury)), (ii) 4,672,897 Shares reserved for future issuance pursuant to the outstanding warrants of Entasis not held by Innoviva or ISO, (iii) 2,561,772 Shares subject to issuance pursuant to options
granted by Entasis under Entasis’ Amended and Restated Stock Incentive Plan (as amended through the date hereof) (the “2015 Plan”) and the Entasis’ 2018 Equity Incentive Plan (as amended through the date hereof, the “2018 Plan”), (iv)
2,625,025 Shares underlying restricted stock units issued pursuant to the 2015 Plan and the 2018 Plan, (v) 1,626,919 Shares reserved for future issuance under the 2018 Plan, and (vi) 904,163 Shares reserved for future issuance under Entasis’
2018 Employee Stock Purchase Plan. The foregoing share figures have been provided by the issuer to the offerors and are as of June 3, 2022, the most recent practicable date.
|
|
(2)
|
The amount of the filing fee, calculated in accordance with Exchange Act Rule 0-11(b)(1) and the Securities and Exchange Commission Fee Rate Advisory #1 for Fiscal Year 2022, was calculated by multiplying
$69,453,247.60 by 0.0000927.
|
|
(3)
|
Innoviva previously paid $6,438.32 upon the filing of its Schedule TO on June 7, 2022 in connection with the transaction reported hereby.
|