Exhibit (a)(1)(F)

 

This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below), and the provisions herein are subject in their entirety to the provisions of the Offer (as defined below). The Offer is made solely by the Offer to Purchase, dated October 22, 2021, and the related Letter of Transmittal and any amendments or supplements thereto, and is being made to all holders of Shares. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, “blue sky” or other laws of such jurisdiction. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.

 

Notice of Offer to Purchase for Cash

All Outstanding Shares of Common Stock

 

of

 

Flexion Therapeutics, Inc.

a Delaware corporation

 

at

 

$8.50 per share, net in cash, plus one non-transferable contingent value right for each share, which represents
the right to receive one or more contingent cash payments of up to $8.00 per share in the aggregate upon the
achievement of specified milestones,

pursuant to the Offer to Purchase dated October 22, 2021

 

by

 

Oyster Acquisition Company Inc.

a wholly owned subsidiary of

 

Pacira BioSciences, Inc.

 

Oyster Acquisition Company Inc., a Delaware corporation (“Purchaser”) and wholly owned subsidiary of Pacira BioSciences, Inc., a Delaware corporation (“Pacira”), is offering to purchase all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Flexion Therapeutics, Inc., a Delaware corporation (“Flexion”), at an offer price of (i) $8.50 per Share, in cash, net of applicable withholding taxes and without interest (the “Cash Amount”), plus (ii) one contingent value right per Share (each, a “CVR”), which will represent the right to receive one or more contingent payments up to $8.00 in the aggregate upon the achievement of specified milestones, if the specified milestones are achieved on or prior to December 31, 2030 (the Cash Amount plus one CVR, collectively, or any higher amount per Share paid pursuant to the Offer, the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated October 22, 2021 (the “Offer to Purchase”) and in the related Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitutes the “Offer”). Stockholders of record who tender directly to American Stock Transfer & Trust Company, LLC (the “Depositary”) will not be obligated to pay brokerage fees, commissions or similar expenses or, except as otherwise provided in the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult with such institution as to whether it charges any service fees or commissions.

 

Each CVR represents the right to receive the following contingent payments of up to $8.00 in the aggregate, in cash, net of applicable withholding taxes and without interest (each, a “Milestone Payment”), in accordance with the terms of the Contingent Value Right Agreement to be entered into at or prior to the Offer Acceptance Time (as defined below) among Pacira and American Stock Transfer & Trust Company, LLC, as rights agent (the “CVR Agreement”), with each Milestone Payment conditioned upon the achievement of the applicable milestone on or prior to December 31, 2030 as follows (each, a “Milestone”): (i) $1.00 per CVR, the first time that net sales of ZILRETTA^® (triamcinolone acetonide extended-release injectable suspension) in any calendar year equal or exceed $250.0 million; (ii) $2.00 per CVR, the first time that net sales of ZILRETTA in any calendar year equal or exceed $375.0 million; (iii) $3.00 per CVR, the first time that net sales of ZILRETTA in any calendar year equal or exceed $500.0 million; (iv) $1.00 per CVR upon approval by the U.S. Food and Drug Administration (the “FDA”) of a biologics license application (BLA) for FX201, Flexion’s clinical stage gene therapy product candidate; and (v) $1.00 per CVR upon approval by the FDA of a new drug application (NDA) for FX301, Flexion’s investigational product candidate.

 

 

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, ONE MINUTE
FOLLOWING 11:59 P.M., EASTERN TIME, ON NOVEMBER 18, 2021 (the “Expiration Date,”
unless Purchaser shall have extended the period during which the Offer is
open in accordance with the Merger Agreement, in which event the
“Expiration Date” shall mean the latest time and date at which the Offer, as
so extended by Purchaser, shall expire).

 

The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of October 11, 2021 (as it may be amended from time to time, the “Merger Agreement”), by and among Pacira, Purchaser and Flexion. The Merger Agreement provides, among other things, that following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions, Purchaser will be merged with and into Flexion (the “Merger”), with Flexion continuing as the surviving corporation in the Merger and wholly owned subsidiary of Pacira. Because the Merger will be governed by Section 251(h) of the General Corporation Law of the State of Delaware (“DGCL”), neither a meeting of Flexion’s stockholders nor a stockholder vote will be required to consummate the Merger. In the Merger, each Share outstanding immediately prior to the effective time of the Merger (the “Effective Time”) (other than Shares held (i) by Flexion or any of its subsidiaries (including any treasury shares) or by Pacira or Purchaser or any other direct or indirect wholly owned subsidiaries of Pacira, which Shares will be canceled and will cease to exist or (ii) by any Flexion stockholders who properly exercise and perfect their appraisal rights under Delaware law with respect to such Shares) will be automatically converted into the right to receive the Offer Price in cash, without interest and subject to any applicable withholding taxes. As a result of the Merger, Flexion will cease to be a publicly traded company and will become wholly owned by Pacira. Under no circumstances will interest be paid on the purchase price for Shares, regardless of any extension of the Offer or any delay in making payment for Shares. The Merger Agreement is more fully described in the Offer to Purchase.

 

In connection with the execution of the Merger Agreement, Pacira and Purchaser entered into Tender and Support Agreements (the “Support Agreements”), dated as of October 11, 2021 with Flexion’s directors and executive officers or certain of their affiliates (each, a “Supporting Stockholder” and, collectively, the “Supporting Stockholders”). Subject to the terms and conditions of the Support Agreements, the Supporting Stockholders have agreed, among other things, to tender, pursuant to the Offer, Shares representing in the aggregate approximately 4.4% of the total outstanding Shares as of October 15, 2021, vote their Shares in favor of the Merger, as applicable, and, subject to certain exceptions, not to transfer any of the Shares that are subject to the Support Agreements.

 

The Offer is conditioned upon, among other things, (a) the absence of a termination of the Merger Agreement in accordance with its terms (the “Termination Condition”) and (b) that (i) the number of Shares validly tendered (and not validly withdrawn) prior to the time that the Offer expires, together with the Shares then owned by Purchaser and its affiliates equals at least one Share more than 50% of the then issued Shares (the “Minimum Condition”), (ii) the waiting period (or any extension thereof) applicable to the Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder has expired or been terminated (the “Regulatory Condition”), and (iii) there be no judgment, temporary, preliminary or permanent order issued by any court of competent jurisdiction or other governmental body preventing the acquisition of or payment for Shares pursuant to the Offer or the consummation of the Offer or the Merger, nor any action or law having been taken, or any law (other than any antitrust law) or order having been promulgated, entered, enforced, enacted, issued or deemed applicable to the Offer or the Merger by any governmental body of competent jurisdiction that remains in effect that directly or indirectly enjoins, restrains or otherwise prohibits, or makes illegal, the acquisition of or payment for Shares pursuant to the Offer, or the consummation of the Offer or the Merger (the “Order Condition”). The Offer is also subject to other conditions as described in the Offer to Purchase (collectively, the “Offer Conditions”). See Section 15—“Conditions to the Offer” of the Offer to Purchase.

 

 

The board of directors of Flexion, among other things, has unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby and by the CVR Agreement and the Support Agreements, including the Offer and the Merger (together, the “Transactions”), fair to, and in the best interest of, Flexion and its stockholders, (ii) approved the execution, delivery and performance by Flexion of the Merger Agreement and the consummation of the Transactions, (iii) resolved that the Merger shall be effected under Section 251(h) of the DGCL and (iv) resolved to recommend that the stockholders of Flexion tender their Shares to Purchaser pursuant to the Offer.

 

The Merger Agreement contains provisions to govern the circumstances in which Purchaser is required or permitted to extend the Offer. Specifically, the Merger Agreement provides that: Purchaser must extend the Offer from time to time for (i) for the minimum period required by any law, any interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or its staff or the Nasdaq Global Market applicable to the Offer, (ii) for periods of up to 10 business days each if, as of the then scheduled Expiration Date, the Regulatory Condition has not been satisfied, in order to permit the satisfaction of such Regulatory Condition and (iii) for additional periods of up to 10 business days per extension at the request of Flexion if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, in order to permit the satisfaction of such Offer Condition. Additionally, Purchaser may, in its discretion, extend the Offer on one or more occasions, if, as of the then scheduled Expiration Date, any Offer Condition has not been satisfied or waived, for an additional period of up to 10 business days per extension, in order to permit the satisfaction of such Offer Condition. Purchaser will not be (i) required to extend the Offer beyond the earlier to occur of (A) the valid termination of the Merger Agreement and (B) February 14, 2022, which date may be extended pursuant to the terms of the Merger Agreement, as described in the Offer to Purchase, but in no event will such date be later than April 11, 2022 (the “Extension Deadline”) or (ii) permitted to extend the Offer beyond the Extension Deadline without the prior written consent of Flexion. Any extension, delay, termination or amendment of the Offer will be followed as promptly as practicable by public announcement thereof, and such announcement in the case of an extension will be made no later than 9:00 a.m., Eastern Time, on the next business day after the previously scheduled Expiration Date. Without limiting the manner in which Purchaser may choose to make any public announcement, it currently intends to make announcements regarding the Offer by issuing a press release and making any appropriate filing with the SEC.

 

Subject to the terms and conditions of the Merger Agreement and applicable law, Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition and (iii) make any other changes in the terms and conditions of the Offer that are not inconsistent with the Merger Agreement. However, without the consent of Flexion, Purchaser is not permitted to, among other things detailed in the Offer to Purchase, (i) decrease the Cash Amount, (ii) change the form of consideration payable in the Offer, (iii) decrease the maximum number of Shares sought to be purchased in the Offer, (iv) amend, modify, change or waive the Minimum Condition, the Termination Condition or the Order Condition, (v) terminate the Offer or accelerate, extend or otherwise change the Expiration Date except in accordance with the relevant provisions of the Merger Agreement or (vi) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

Acceptance and payment for Shares pursuant to and subject to the satisfaction or waiver of the Offer Conditions is expected to occur on November 19, 2021, unless Pacira extends the Offer pursuant to the terms of the Merger Agreement (the “Offer Acceptance Time”).

 

 

On the terms of the Merger Agreement and subject to the satisfaction or waiver of the Offer Conditions, Purchaser shall, and Pacira shall cause Purchaser to, irrevocably accept for payment at the Offer Acceptance Time and pay for, all of the Shares validly tendered (and not validly withdrawn) pursuant to the Offer as promptly as practicable after the Offer Acceptance Time. For purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not validly withdrawn as, if and when Purchaser notifies the Depositary of its acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the aggregate Cash Amounts for such Shares with the Depositary, which will act as paying agent for tendering stockholders for the purpose of receiving payments from Purchaser and transmitting such payments to tendering stockholders whose Shares have been accepted for payment. If Purchaser extends the Offer, is delayed in its acceptance for payment of Shares or is unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to Purchaser’s rights under the Offer and the Merger Agreement, the Depositary may retain tendered Shares on Purchaser’s behalf, and such Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described in the Offer to Purchase and as otherwise required by Rule 14e-1(c) under the Exchange Act. Under no circumstances will Pacira or Purchaser pay interest on the purchase price for Shares by reason of any extension of the Offer or any delay in making such payment for Shares. No alternative, conditional or contingent tenders will be accepted. In all cases, payment for Shares accepted for payment pursuant to the Offer will only be made after timely receipt by the Depositary of (i) certificates evidencing such Shares (the “Share Certificates”) or confirmation of a book-entry transfer of such Shares (a “Book-Entry Confirmation”) into the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the Offer to Purchase, (ii) the Letter of Transmittal (or a manually signed facsimile thereof), properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message (as described in the Offer to Purchase) in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Share Certificates or Book-Entry Confirmations with respect to Shares are actually received by the Depositary.

 

Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Date and, unless theretofore accepted for payment by Purchaser pursuant to the Offer, may also be withdrawn at any time after December 21, 2021, which is the 60th day after the date of the commencement of the Offer. For a withdrawal to be proper and effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Depositary at one of its addresses set forth on the back cover page of the Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name in which the Share Certificates are registered if different from that of the person who tendered such Shares. If Share Certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Share Certificates, the serial numbers shown on such Share Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution (as described in the Offer to Purchase), unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in the Offer to Purchase, any notice of withdrawal must also specify the name and number of the account at DTC to be credited with the withdrawn Shares. Withdrawals of Shares may not be rescinded. Any Shares properly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by again following one of the procedures described in the Offer to Purchase at any time prior to the Expiration Date.

 

Purchaser will determine, in its sole discretion, all questions as to the form and validity (including time of receipt) of any notice of withdrawal and Purchaser’s determination will be final and binding, subject to the rights of the tendering holders of Shares to challenge our determination in a court of competent jurisdiction. Our interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto) will be determined by us in our reasonable judgement. None of Pacira, Purchaser, the Depositary, D.F. King & Co., Inc. (the “Information Agent”) or any other person will be under any duty to give notice of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification.

 

Flexion has provided Pacira with Flexion’s stockholder list and security position listings for the purpose of disseminating the Offer to Purchase, the Letter of Transmittal and other related materials to holders of Shares. The Offer to Purchase and Letter of Transmittal will be mailed to record holders of Shares whose names appear on Flexion’s stockholder list and will be furnished to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing for subsequent transmittal to beneficial owners of Shares.

 

The receipt of cash and CVRs by a U.S. holder in exchange for Shares pursuant to the Offer or the Merger will be a taxable transaction for U.S. federal income tax purposes. The U.S. federal income tax treatment of the CVRs is uncertain. See Section 5—“Material United States Federal Income Tax Consequences” of the Offer to Purchase for a more detailed discussion of the tax treatment of the Offer and the Merger. Each holder of Shares should consult with its tax advisor as to the particular tax consequences to such holder of exchanging Shares for cash in the Offer or the Merger.

 

 

The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference. The Offer to Purchase, the Letter of Transmittal and the other related tender offer documents contain important information. Holders of Shares should carefully read such documents in their entirety before any decision is made with respect to the Offer.

 

Questions and requests for assistance may be directed to the Information Agent at its address and telephone numbers set forth below. Requests for copies of the Offer to Purchase, the Letter of Transmittal, the notice of guaranteed delivery and other tender offer materials may be directed to the Information Agent. Such copies will be furnished promptly at Purchaser’s expense. Stockholders may also contact brokers, dealers, commercial banks or trust companies for assistance concerning the Offer. Except as set forth in the Offer to Purchase, neither Purchaser nor Pacira will pay any fees or commissions to any broker or dealer or any other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks, trust companies or other nominees will, upon request, be reimbursed by Purchaser for customary mailing and handling expenses incurred by them in forwarding the Offer materials to their customers.

 

The Information Agent for the Offer is:

 

D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and Brokers may call: (212) 269-5550
Stockholders may call toll free: (800) 578-5378
FLXN@dfking.com

 

October 22, 2021

 

 

 

Exhibit (d)(4)

 

CONFIDENTIALITY AGREEMENT

 

THIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of June 1, 2021, between Flexion Therapeutics, Inc., a Delaware corporation (the “Company”), and Pacira BioSciences, Inc., a Delaware corporation (“Counterparty”).

 

In order to facilitate the consideration and negotiation of a possible transaction between the Company and Counterparty (the “Transaction”), each of the Company and Counterparty (referred to collectively as the “ Parties” and individually as a “Party”) has either requested or may request access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.

 

The Parties, intending to be legally bound, acknowledge and agree as follows:

 

1.   Limitations on Use and Disclosure of Confidential Information.   Subject to Section 4 below, the Recipient will not, and will direct its Representatives (as defined in Section 15 below) not to, at any time, directly or indirectly:

 

(a)   make use, or allow the use, of any of the Provider’s Confidential Information (as defined in Section 14 below), except for the specific purpose of considering, evaluating, negotiating and consummating the Transaction; or

 

(b)   disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 15 below).

 

The Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives. The Recipient will (at its own expense) direct its Representatives to not make any use or disclose of any of the Provider’s Confidential Information in violation of this Agreement.

 

2.   Provider Contact Person.   Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential Information must be directed to the individual(s) identified opposite the name of the Provider on Exhibit A (as applicable, the “Provider Contact Person”). Neither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in connection with the Transaction without the prior written authorization of the Provider Contact Person.

 

3.   No Representations by Provider.   The Provider Contact Person will have the exclusive authority to decide what Confidential Information (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and, unless otherwise agreed between the Parties, neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state securities laws or otherwise) to the extent resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a Transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) or as otherwise agreed between the Parties will have legal effect with respect to a Transaction.

 

 

4.   Permitted Disclosures.

 

(a)   Notwithstanding the limitations set forth in Section 1 above:

 

(i)   the Recipient (and, if applicable, any of its Representatives) may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to the Recipient’s (or, if applicable, any of its Representative’s) disclosure thereof;

 

(ii)   subject to Section 4(b) below, the Recipient (and, if applicable, any of its Representatives) may disclose Confidential Information of the Provider to any Representative of the Recipient, but only if such Representative (A) needs access to Confidential Information for the purpose of assisting the Recipient in the evaluating, negotiating or consummating the Transaction, and (B) has been provided with a copy of this Agreement and has been instructed to abide by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and

 

(iii)   subject to Section 4(c) below, the Recipient (and, if applicable, any of its Representatives) may disclose Confidential Information of the Provider to the extent required by applicable law, rule, governmental regulation (including in connection with any legal, regulatory, judicial or administrative process or any audit or inquiry by a regulator, bank examiner or auditor), self-regulating organization, pursuant to mandatory professional ethics rules or as required by the rules and regulations of any securities exchange (collectively, “Law”).

 

(b)   If prior to providing certain Confidential Information to the Recipient (and, if applicable, its Representatives), the Provider delivers to the Recipient a written notice stating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient (and, if applicable, such specified Representatives) shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.

 

(c)   If the Recipient or any of the Recipient’s Representatives is required by Law to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will, unless prohibited by applicable Law, within two business days, provide the Provider with written notice of the applicable Law so that the Provider may seek at its sole cost and expense an appropriate protective order or other appropriate protective remedy. The Recipient will, and will direct its Representatives to, make commercially reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or such other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or such other remedy in connection with any requirement that the Recipient or any of its Representatives, as applicable and as required by Law, disclose Confidential Information of the Provider, then the Recipient or any of such Representatives, as applicable, may disclose such Confidential Information to the extent required by Law; provided, however, that the Recipient and its Representatives will use their commercially reasonable efforts to ensure that such Confidential Information is treated confidentially by each such Person to whom it is disclosed.

 

5.   Return of Confidential Information.   Upon the Provider’s written request, the Recipient and the Recipient’s Representatives will promptly deliver to the Provider all of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential Information of the Provider, the Recipient may destroy such written materials and deliver to the Provider confirmation by email of such destruction; provided further, that (i) Recipient and its Representatives shall not be required to destroy any computer files stored securely by them that are created pursuant to Recipient’s or its Representatives’ standard and automatic backup or archival procedures; (ii) Recipient’s external professional advisors (including its external auditors) shall be entitled to retain such Confidential Information as they are required to retain by law or any professional standard applicable to them; and (iii) the Recipient and its Representatives may retain a

 

 

copy of Confidential Information to the extent required by applicable Law. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.

 

6.   Limitations on Soliciting Employees.   During the one year period commencing on the date of this Agreement, Counterpart)’ and its subsidiaries and controlled affiliates will not solicit, induce or encourage any employee of the Company or any of its subsidiaries to terminate such employee’s relationship with the Company or the relevant subsidiary of the Company in order to become an employee, consultant or independent contractor of Counterparty or its subsidiaries or any controlled affiliate of Counterparty; provided that the foregoing restrictions shall not apply to any solicitations made (a) pursuant to general advertising or through search firms that are not directed specifically at employees of the Company or (b) at least three months following the date on which any such employee has been terminated by the Company or such subsidiary of the Company (subject to any such former employee’s non-competition provisions or other non-solicitation provisions applicable to a Party’s Representatives).

 

7.   Standstill Provision.   During the one year period commencing on the date of this Agreement (the “Standstill Period”), neither Party nor any of such Party’s subsidiaries, controlled affiliates, or Representatives will, in any manner, directly or indirectly:

 

(a)   make, effect, initiate, or participate in (i) any acquisition of beneficial ownership of any securities of the other Party or any securities (including derivatives thereof) of any subsidiary or other controlled affiliate of the other Party, (ii) any acquisition of any assets of the other Party or any assets of any subsidiary, division or other controlled affiliate of the other Party, except in the ordinary course of business, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving the other Party or any subsidiary or other controlled affiliate of the other Party or involving any securities or assets of the other Party or any securities or assets of any subsidiary, division or other affiliate of the other Party, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of the other Party, except that such Party may beneficially own up to 1% of each class of the such other Party’s outstanding securities;

 

(b)   form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of the other Party or any subsidiary or division of the other Party;

 

(c)   act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the other Party;

 

(d)   take any action that would reasonably be expected to require the other Party to make a public announcement regarding any of the types of matters set forth in clause “(a)” of this sentence;

 

(e)   agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)” or “(d)” of this sentence;

 

(f)   assist, induce or encourage any other Person to take any action referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence;

 

(g)   (g)   enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or

 

(h)   request or propose (either directly or indirectly) that the other Party or any of the other Party’s Representatives amend, waive or consider the amendment or waiver of any provision set forth in this Section 7 (including this sub-paragraph).

 

Notwithstanding any other provision of this Agreement to the contrary, nothing in this Agreement will be deemed to prohibit a Party from confidentially communicating to the other Party’s board of directors or senior management or external financial advisors any non-public proposals regarding a possible transaction

 

 

of any kind in such a manner as would not reasonably be expected to require public disclosure thereof under applicable law or listing standards of any securities exchange. The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement

 

8.   No Obligation to Pursue Transaction.   Unless the Parties enter into a Definitive Agreement, no agreement providing for the Transaction will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any such agreement or transaction with the other Party. Except as otherwise set forth in this Agreement, each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to the Transaction and to modify any procedures relating to any such process without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to the Transaction; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided herein or in any binding written agreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.

 

9.   No Waiver.   No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.

 

10.   Remedies.   Each Party acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s Representatives and that the other Party may suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party and each Party further agrees to waive any requirement for the showing of actual damages or securing or posting of any bond in connection with such remedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).

 

11.   Trading in Securities.   The Recipient acknowledges and agrees that it and its Representatives are aware that Confidential Information being furnished by the Provider may contain material, non-public information regarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.

 

12.   Successors and Assigns; No assignment.   This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement may not be assigned by any Party without the express prior written consent of the other Party.

 

13.   Applicable Law; Jurisdiction and Venue.   This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any

 

 

action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party or any of such Party’s Representatives; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.

 

14.   Confidential Information.   For purposes of this Agreement, the Provider’s “Confidential Information” means:

 

(a)   any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider on or after the date hereof;

 

(b)   any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause “(a)” of this Section 14;

 

(c)   the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this Section 14 has been made available to the Recipient or any of its Representatives; and

 

(d)   the fact that discussions or negotiations are or may be taking place with respect to the Transaction and the proposed terms of any such transaction.

 

However, the Provider’s “Confidential Information” will not be deemed to include:

 

(i)   any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by the Recipient or by any of the Recipient’s Representatives in violation of this Agreement;

 

(ii)   any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives; provided that such information was not and is not known to the Recipient to be disclosed in violation of any contractual or other obligation of confidentiality to the Provider with respect to any of such information;

 

(iii)   any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or any of the Provider’s Representatives; provided that such information is not known to the Recipient to be disclosed in violation of any contractual or other obligation of confidentiality with respect to any of such information; or

 

(iv)   any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information and without reference to or use of Confidential Information.

 

15.   Miscellaneous.

 

(a)   For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or during the term of this Agreement becomes (i) a subsidiary or controlled affiliate of such Party, (ii) an officer, director, member, manager, executive partner, employee,

 

 

partner, advisor (including without limitation accountants, attorneys, financial advisors, and consultants), agent or other representative of such Party or of such Party’s controlled affiliates or (iii) a potential debt financing source to be used by such Party in connection with the Transaction; provided that any debt financing source be a bona fide third party institutional lender who is or may be engaged to provide debt financing to such Party in connection with the Transaction, and in each case solely to the extent such Person receives or is provided access to Confidential Information. Representatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund managed by Counterparty, or any proposed joint buyer in the Transaction.

 

(b)   The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.

 

(c)   The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement.

 

(d)   Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

 

(e)   By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.

 

(f)   To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all reasonable measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.

 

(g)   This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and supersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof (other than any confidentiality and/or non-disclosure agreements in effect between the Parties prior to the date of this Agreement which shall remain in full force and effect).

 

(h)   The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar repository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with the Transaction, notwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I agree” icon or other indication of asset to such additional confidentiality conditions.

 

(i)   This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement; provided that Section 13 shall be binding in perpetuity or until the latest date permitted by law. For the avoidance of doubt, the termination of this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision

 

 

contained in this Agreement that occurred prior to such termination. Nothing herein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public domain.

 

(j)   This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.

 

* * * * *

 

 

The parties have caused this Agreement to be executed as of June 1, 2021.

 

FLEXION THERAPEUTICS, INC.			PACIRA BIOSCIENCES, INC.
By:	/s/ Mark S. Levine		By:	/s/ Kristen Williams
Name:	Mark S. Levine		Name:	Kristen Williams
Title:	General Counsel		Title:	Chief Administration Officer,
			Corporate Secretary
Address: 10 Mall Road			Address: 5 Sylvan Way
Burlington, MA 01803			Parsippany. NJ 07054

 

[Signature Page — Confidentiality Agreement]

 

 

EXHIBIT A

 

PROVIDER CONTACT PERSONS

 

Flexion therapeutics, inc.	Pacira biosciences, inc.
Michael clayman, m.d., ceo	David stack, ceo and chairman
Fred driscoll, cfo	Kristen williams, cao and secretary
Mark levine, general counsel	Ron ellis, senior vice president

 

[Exhibit A to Confidentiality Agreement]

 

 

 

 

Exhibit (d)(5)

EXCLUSIVITY AGREEMENT

 

This Exclusivity Agreement (this “Agreement”) is made as of September 25, 2021, between Pacira BioSciences, Inc. (“Pacira”) and Flexion Therapeutics, Inc. (the “Company”, and together with Pacira, the “Parties”).

 

BACKGROUND

 

A.   The Parties have engaged in and expect to continue to engage in non-binding discussions involving a possible acquisition of all of the outstanding capital stock of the Company by Pacira (the “Transaction”).

 

B.   In consideration of the time and resources necessary for Pacira to complete its due diligence and to negotiate the necessary documentation for the Transaction and incurring various related fees and expenses, the Parties wish to further define their respective rights and obligations with respect to their evaluation of the Transaction.

 

AGREEMENT

 

In consideration of the foregoing and the agreements contained in this Agreement, the Parties agree as follows:

 

1.   The Company agrees that from the date hereof until the earliest of (a) 11:59 p.m. Pacific Time on October 11, 2021, (b) Pacira’s express written notice to the Company that it no longer intends to pursue a Transaction or (c) the execution and delivery of definitive documentation with respect to a Transaction (the “Exclusivity Period”): (i) the Company shall negotiate exclusively with Pacira; (ii) the Company shall not, and shall cause its Affiliates and Representatives not to, directly or indirectly, initiate, solicit, discuss, negotiate or encourage (including by way of furnishing information) any inquiries, proposals or offers (whether publicly or otherwise and whether or not subject to conditions) from any third party relating to (A) an acquisition of the Company or any of its subsidiaries by merger or otherwise or an acquisition of beneficial ownership of greater than 5% of the Company’s or any of its subsidiaries’ outstanding capital stock or any material portion of the Company’s or any of its subsidiaries’ assets, or (B) a recapitalization, restructuring, reorganization, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries (collectively, an “Alternative Transaction”) or assist any third party in preparing or soliciting a proposal or offer relating in any way to an Alternative Transaction; (iii) the Company shall not, and shall not enter into an agreement to, and shall cause its subsidiaries not to, issue or sell any of its or their capital stock or securities exercisable, convertible or exchangeable therefor, other than the issuance or sale of such capital stock or securities exercisable, convertible or exchangeable therefor pursuant to equity compensation plans, currently outstanding warrants or any agreements in effect as of the date hereof; and (iv) the Company shall not have, and shall cause the Company’s Affiliates and Representatives not to have, any discussions, conversations, negotiations or other communications with any third party relating to, or that could be reasonably expected to lead to, an Alternative Transaction. The Company agrees that it shall, and shall cause its Affiliates and Representatives to, immediately cease any existing discussions, negotiations or activities, including the provision of non-public information (and the provision of access to non-public information) with any third party (other than Pacira) regarding the Company or its Affiliates with respect to any inquiry, proposal or offer relating to, or reasonably likely to lead to, an Alternative Transaction.

 

2.   For purposes of this Agreement, the term (i) “Representative” means any of a Party’s officers, directors, employees, representatives, Affiliates, agents, professional advisors (including attorneys, financial advisors and accountants) or authorized representatives, (ii) “Person” means any natural person, general or limited partnership, corporation, limited liability company, limited liability partnership, firm, association or organization, trust, joint venture, governmental entity or other legal entity, and (iii) “Affiliates” means, with respect to any specified Person, any other Person that, at the time of determination, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such specified Person.

 

3.   The Parties acknowledge and agree that unless and until the execution and delivery of definitive documentation with respect to the Transaction, none of the Parties or any of their respective Affiliates

 

 

intends to be, nor shall any of them be, under any legal obligation of any kind whatsoever with respect to the Transaction, any other transaction or otherwise, except for the matters specifically agreed to in this Agreement. Neither the discussions or negotiations between the Parties nor this Agreement is intended to, and they do not, create any duties or obligations between the Parties other than those obligations specifically set forth herein.

 

4.   The terms of this Agreement may be modified or waived only by a separate writing signed by each of the Parties that expressly modifies or waives any such term. Each of the Parties agrees that irreparable harm would occur if any of the provisions of this Agreement were not to be performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof in addition to any other remedies at law or in equity.

 

5.   This Agreement will terminate immediately following the Exclusivity Period. The termination of this Agreement shall not affect the liability of a Party for breach of any of the provisions of this Agreement prior to termination.

 

6.   This Agreement shall be construed in accordance with the internal laws of the State of Delaware without regard to principles of choice or conflicts of law. If any provision of portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law. This Agreement may be executed in one or more counterparts, all of which together shall constitute one and the same agreement. This Agreement represents the entire agreement of the Parties concerning the subject matter hereof and supersedes any prior or contemporaneous oral (or any prior written) agreements concerning the subject matter hereof.

 

[remainder of page intentionally left blank]

 

 

The Parties have caused this Agreement to be duly executed on the date first written above.

 

	PACIRA BIOSCIENCES, INC.
	By:	/s/ David Stack
	Name:	David Stack
	Title:	Chief Executive Officer & Chairman
	FLEXION THERAPEUTICS, INC.
	By:	/s/ Michael Clayman
	Name:	Michael Clayman
	Title:	Chief Executive Officer