ABMD ABIOMED Inc

Agreement and Plan of Merger

As previously disclosed in the Current Report on Form 8-K filed by ABIOMED, Inc., a Delaware corporation (the “Company”), with the U.S. Securities and Exchange Commission (the “SEC”) on November 1, 2022, the Company is party to an Agreement and Plan of Merger, dated as of October 31, 2022 (the “Merger Agreement”), with Johnson & Johnson, a New Jersey corporation (“Parent”), and Athos Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”).

Pursuant to the Merger Agreement, and on the terms and subject to the conditions thereof, on November 15, 2022, Merger Sub commenced a tender offer (the “Offer”) to acquire all of the Company’s outstanding shares of common stock (the “Company Shares”) at a purchase price (the “Offer Price”) of (i) $380.00 per Company Share, net to the seller in cash, without interest and less any applicable withholding tax (the “Cash Amount”), plus (ii) one non-tradeable contractual contingent value right per Company Share (each, a “CVR”), which CVR represents the right to receive contingent payments of up to $35.00 per Company Share in cash, without interest and less any applicable withholding tax, upon achievement of certain specified milestones in accordance with the terms and subject to the conditions of the Contingent Value Rights Agreement, dated as of December 22, 2022 (the “CVR Agreement”), by and between Parent and American Stock Transfer & Trust Company, LLC (“AST”) in its capacity as rights agent.

The Offer expired at 11:59 p.m., New York City time, on December 21, 2022 and was not extended. According to Parent, Merger Sub was advised by AST, in its capacity as depositary for the Offer, that approximately 25,759,195 Company Shares were validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 57.1% of the then outstanding Company Shares. The number of tendered shares satisfies the Minimum Condition (as defined in the Merger Agreement). With the Minimum Condition and all other conditions to the Offer having been satisfied, on December 22, 2022, Merger Sub accepted for purchase all Company Shares that were validly tendered and not validly withdrawn pursuant to the Offer.

Following completion of the Offer, on December 22, 2022, Merger Sub merged with and into the Company pursuant to Section 251(h) of the General Corporation Law of the State of Delaware and without any stockholder vote (the “Merger”), with the separate corporate existence of Merger Sub ceasing and the Company surviving the Merger under the name “ABIOMED, Inc.” as a wholly owned subsidiary of Parent, pursuant to the Merger Agreement.

At the effective time of the Merger (the “Effective Time”), and as a result of the Merger, each outstanding Company Share, other than any Company Shares (i) owned at the commencement of the Offer and immediately prior to the Effective Time by Parent, Merger Sub or the Company (or held in the Company’s treasury), or by any direct or indirect wholly owned subsidiary of Parent or Merger Sub, (ii) irrevocably accepted for purchase pursuant to the Offer, or (iii) owned by Company stockholders who were entitled to demand and properly and validly demanded their appraisal rights under Delaware law, was automatically converted into the right to receive the Offer Price.

In addition, at the Effective Time, each Company equity-based award was canceled in exchange for the Cash Amount (less the exercise price in the case of any stock option) plus one CVR, in each case, multiplied by the number of Company Shares underlying such award. In the case of any such award subject to performance-based vesting conditions, the number of Company Shares underlying the award was generally determined based on actual performance for any performance periods that have been completed as of the Effective Time and maximum performance for all other performance periods. Notwithstanding the foregoing, any stock option with an exercise price that is greater than the Cash Amount was instead canceled in exchange for the right to receive cash payments in an amount equal to the excess, if any, of (a) the total amount of the Milestone Payments (as defined in the CVR Agreement) actually payable in connection with a CVR pursuant to the terms of the CVR Agreement minus (b) the amount by which such exercise price exceeds the Cash Amount.

The aggregate consideration paid in the Offer and the Merger was approximately $17.1 billion, without giving effect to related transaction fees and expenses, which Parent funded through a combination of cash on hand and short-term financing.

The foregoing summary of the Merger Agreement is qualified in its entirety by reference to the Merger Agreement, which was filed as Exhibit 2.1 of the Current Report on Form 8-K filed by the Company with the SEC on November 1, 2022, and is incorporated by reference herein.

The information set forth in Items 3.01, 5.01 and 5.03 is incorporated by reference into this Item 2.01.

Executive Vice President, General Counsel and Corporate Secretary, in each case payable upon the closing of the Merger. Each such transaction bonus was subject to continued employment through the closing of the Merger and acknowledgement and affirmation of the restrictive covenants previously entered into between the Company and each of Mr. Trapp and Mr. Began.

Departure of Directors and Certain Executive Officers

Pursuant to the Merger Agreement, at the Effective Time, on December 22, 2022, each of the members of the board of directors of the Company prior to the Effective Time ceased to be members of the board of directors of the Company, and the members of the board of directors of Merger Sub, consisting of Susan Morano, Vincent Sommella and David Fortunati, became the members of the board of directors of the Company.

In addition, effective as of the closing of the Merger, the employment with the Company of each of Michael R. Minogue, the Company’s Chairman, President and Chief Executive Officer, Mr. Trapp and Mr. Began terminated. Each such termination of employment constituted a termination without “Cause” under the respective individual’s change of control agreement (and, in the case of Mr. Minogue, the letter agreement entered into with the Company in connection with the Company’s entry into the Merger Agreement). Each of Messrs. Minogue, Trapp and Began will receive severance in accordance with the terms of his individual agreement with the Company.