Item 1.01.
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Entry into a Material Definitive Agreement
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Merger Agreement
On May 18, 2020, Revance Therapeutics,
Inc., a Delaware corporation (Revance), Heart Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Revance (Merger Sub), Hint, Inc., a Delaware corporation (HintMD), and Fortis Advisors LLC,
solely in its capacity as the representative, agent and attorney-in-fact of the securityholders of HintMD, entered into an Agreement and Plan of Merger (the Merger
Agreement). Upon the terms and subject to the satisfaction of the conditions described in the Merger Agreement, including approval of the transaction by the HintMDs stockholders, Merger Sub will merge with and into HintMD (the
Merger) whereupon the separate corporate existence of Merger Sub shall cease and HintMD shall continue as the surviving corporation of the Merger as a wholly-owned subsidiary of Revance.
Pursuant to the terms of the Merger Agreement, at the effective time of the Merger (the Effective Time), the shares of capital stock of HintMD the
(HintMD Capital Stock) that are issued and outstanding immediately prior to the Effective Time will be automatically cancelled and converted into the right to receive Revance common stock and Revance will assume all outstanding equity
awards of HintMD other than unvested options held by former employees of HintMD. The total number of Revance shares to be issued or reserved for issuance will be eight million four hundred and fifty thousand (8,450,000) shares, subject to adjustment
for cash, working capital, unpaid indebtedness, unpaid transaction expenses and the aggregate exercise prices of all HintMD options and warrants (the Merger Shares). Six hundred eighty three thousand and two hundred (683,200) of the
Merger Shares (the Escrow Shares) will be held in an escrow fund for purposes of satisfying any post-closing purchase price adjustments and indemnification claims under the Merger Agreement.
The Merger Agreement contains customary representations and warranties of each of the parties as well as customary covenants, closing conditions and
additional agreements, including with respect to the operation of the business of HintMD between signing and closing. The Merger Agreement includes indemnification provisions whereby the stockholders of HintMD will indemnify Revance for losses
arising out of, among other things, inaccuracies in, or breaches of, the representations, warranties and covenants of HintMD, pre-closing taxes of HintMD and matters relating to claims by holders of former
holders of HintMD capital stock, subject to certain caps, deductibles, and other limitations. To support such indemnification obligations, Revance and the other indemnified parties will be able to make claims against the Escrow Shares for a period
of 24 months following the consummation of the Merger.
Additionally, following the completion of the Merger, it is expected that Aubrey Rankin, a
director, founder, Chief Executive Officer and an equity holder of HintMD will join the Revance board of directors.
Revance and HintMD intend, for U.S.
federal income tax purposes, that the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986 and Treasury Regulations Sections
1.368-2(g) and 1.368-3, and the Merger Agreement was adopted as a plan of reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986
and Treasury Regulations Sections 1.368-2(g) and 1.368-3.
Mark J. Foley,
President, Chief Executive Officer and director of Revance is also a former director and a current equity holder of HintMD. The respective boards of directors of Revance and HintMD have approved the Merger Agreement, and the board of directors of
HintMD has resolved to recommend that HintMDs stockholders adopt the Merger Agreement.
Consummation of the Merger is subject to customary closing
conditions, including, among other things, the absence of certain legal impediments, the effectiveness of a Registration Statement on Form S-4 with the Securities and Exchange Commission (the SEC),
and approval by HintMDs stockholders.
The Merger Agreement contains customary termination rights for both Revance and HintMD and further provides
that HintMD must pay Revance a termination fee of $7.5 million upon termination of the Merger Agreement under specified circumstances, including, if the board of directors of HintMD withdraws or modifies (in a manner adverse to Revance) its
recommendation that HintMDs stockholders approve the Merger, or adopts, approves, or recommends any alternative takeover transaction with a third party. In addition, HintMD has agreed to non-solicitation
obligations related to alternative takeover transactions with third parties.
A copy of the Merger Agreement will be filed as an exhibit to the
Registration Statement on Form S-4 to be filed by Revance in connection with the Merger.
Loan Agreement
Concurrent with the execution and delivery of the Merger Agreement, Revance and HintMD entered into a loan agreement (the Loan Agreement),
pursuant to which Revance has agreed to advance to HintMD amounts to fund working capital prior to the closing of the Merger, which Revance expects to occur in the third quarter of 2020. An aggregate amount of up to $14,391,759 (the
Loan) with the annual interest of 1.5% on the outstanding Loan principal amount would be available to HintMD on the following days and in the following amounts (each, an Advance):
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July 10, 2020
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$
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3,650,055
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August 15, 2020
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$
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4,016,841
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October 15, 2020
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$
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3,124,863
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December 15, 2020
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$
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3,600,000
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The Loan will mature on September 6, 2026, provided that if HintMDs senior indebtedness is prepaid or converted into
shares of the Companys capital stock prior to March 5, 2026, then the maturity date shall be the later of (i) one (1) year following the termination of the Merger Agreement, and (ii) the date the senior indebtedness is prepaid or converted in
full. The Loan shall be forgiven if the Merger Agreement is terminated as a result of the willful and material breach by Revance, provided no change of control of HintMD has occurred prior to such date.
A copy of the Loan Agreement will be filed as an exhibit to the Registration Statement on Form S-4 to be filed by Revance in connection with the Merger.