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Memory Pharmaceuticals 8-K 2009 UNITED STATES
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported): January 1, 2009
Memory Pharmaceuticals Corp.
(Exact name of registrant as specified in its charter)
Registrant’s
telephone number, including area code: (201) 802 - 7100
Not Applicable
Former name or former address, if changed since last report Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
Introductory Note
On January 5, 2009, Memory Pharmaceuticals Corp., a Delaware corporation (“Memory”), completed its
merger (the “Merger”) with 900 North Point Acquisition Corporation, a Delaware corporation (“Merger
Sub”) and a wholly-owned subsidiary of Hoffmann-La Roche Inc., a New Jersey corporation (“Roche”),
pursuant to the terms and conditions of the Agreement and Plan of Merger, dated as of November 25,
2008, among Memory, Roche and Merger Sub (the “Merger Agreement”). The Merger became effective on
January 5, 2009 (the “Effective Time”), in accordance with Section 253 of the Delaware General
Corporation Law (the “DGCL”) and pursuant to the Certificate of Merger that was filed on January 5,
2009 with the Secretary of State of the State of Delaware. As a result of the Merger, Memory
continued as the surviving corporation (the “Surviving Corporation”) and a wholly-owned subsidiary
of Roche.
Pursuant to the Merger Agreement, Merger Sub made a tender offer (the “Offer”) to purchase all of
the outstanding shares of the common stock of Memory at a purchase price of $0.61 per share, net to
the seller in cash, without interest, and less any applicable withholding taxes, upon the terms and
conditions set forth in the Offer to Purchase dated December 3, 2008 (as amended or supplemented,
the “Offer to Purchase”), and in the related Letter of Transmittal, each filed as an exhibit to the
Tender Offer Statement on Schedule TO filed by Roche and Merger Sub with the SEC on December 3,
2008. The Offer expired at 12:00 midnight, New York City time, at the end of Wednesday, December
31, 2008, pursuant to which approximately 89% of the outstanding shares of Memory common stock, par
value $0.001 per share (collectively, the “Shares”), were tendered and not withdrawn prior to the
expiration of the Offer.
All descriptions of the Merger Agreement contained herein are qualified in their entirety by
reference to the complete text of the Merger Agreement, a copy of which was filed by Memory with
the SEC as Exhibit 2.1 to the Current Report on Form 8-K, filed on November 25, 2008.
The information disclosed in the Introductory Note is hereby incorporated by reference.
On January 5, 2009, Memory notified The NASDAQ Capital Market (“NASDAQ”) of the effectiveness of
the Merger. As a result of the Merger, Memory no longer meets the numerical listing requirements
of NASDAQ. Memory also notified NASDAQ that each share of Memory common stock, issued and
outstanding immediately prior to the Effective Time (other than Shares owned by Roche, Merger Sub
or any subsidiary of Roche or Memory or Shares as to which appraisal rights are validly exercised
under the DGCL), was converted into the right to receive $0.61 per share in cash, without interest
and less any required withholding taxes (the “Merger Consideration”), and requested that NASDAQ
file with the Securities and Exchange Commission (the “SEC”) an application on Form 25 to report
that shares of Memory’s common stock are no longer listed on NASDAQ. Trading of shares of Memory
common stock on NASDAQ was suspended on January 5, 2009.
Item 3.02 Unregistered Sales of Equity Securities.
On January 2, 2009, Merger Sub, pursuant to the terms of the Merger Agreement, exercised its option
to purchase directly from Memory 74,329,714 newly-issued Shares (the “Top-Up Shares”) for a
purchase price equal to the number of Top-Up Shares multiplied by the Merger Consideration per
share. Of this purchase price, $74,329.72 was paid in cash (which amount is equal to the aggregate
par value of the Top-Up Shares) and $45,266,795.83 was paid by delivery of a promissory note. As a
result of Merger Sub’s acquisition of the Shares validly tendered and not withdrawn prior to the
expiration of the Offer and its acquisition of the Top-Up Shares, Merger Sub owned more than 90% of
the outstanding Shares.
The Top-Up Shares were issued without registration under the Securities Act of 1933, as amended
(the “Securities Act”), in reliance upon the exemption from registration set forth in Section 4(2)
of the Securities Act. The offering was not a “public offering” as defined in Section 4(2) of the
Securities Act based on the fact that Merger Sub was the only person involved in the transaction,
the size of the offering, and the manner of the offering. In addition, Merger Sub had the
necessary investment intent as required by Section 4(2) of the Securities Act since the Top-Up
Shares were issued to facilitate the Merger pursuant to which Memory has become a wholly-owned
subsidiary of Roche.
Item 3.03 Material Modification to Rights of Security Holders.
The information disclosed in the Introductory Note is hereby incorporated by reference.
In connection with the consummation of the Merger, each share of Memory common stock issued and
outstanding immediately prior to the Effective Time (other than Shares owned by Roche, Merger Sub
or any subsidiary of Roche or Memory or Shares as to which appraisal rights are validly exercised
under the DGCL) was converted into the right to receive the Merger Consideration. At the Effective
Time, Memory’s stockholders immediately prior to the Effective Time ceased to have any rights as
stockholders in Memory (other than their right to receive the Merger Consideration) and accordingly
no longer have any interest in Memory’s future earnings or growth.
Item 5.01 Changes in Control of Registrant.
Roche announced on January 2, 2009 that the Offer expired at 12:00 midnight, New York City time, at
the end of Wednesday, December 31, 2008 and that, according to Mellon Investor Services LLC, the
depositary for the Offer, as of the expiration of the Offer, a total of 73,169,195 Shares were
tendered and not withdrawn, including 890,630 Shares tendered pursuant to notices of guaranteed
delivery, representing a total of approximately 89% of the outstanding Shares. Merger Sub has
accepted all Shares that were validly tendered and not withdrawn prior to the expiration of the
Offer and payment for such Shares is to be made promptly in accordance with the terms of the Offer.
The information disclosed in the Introductory Note and in Item 3.02 above are hereby incorporated
by reference.
Merger Sub previously disclosed in the Offer to Purchase that it would need approximately $51.4
million to purchase all of the Shares pursuant to the Offer and to consummate the Merger, including
the payment of related fees and expenses. According to the Offer to Purchase, the funds necessary
to consummate the Offer and the Merger and to pay the related fees and expenses are anticipated to
be obtained from general corporate funds of the Roche Group.
The Merger Agreement provides that from and after the Effective Time, until successors are duly
elected or appointed and qualified in accordance with the DGCL, the directors of Merger Sub at the
Effective Time would be the directors of the Surviving Corporation and the officers of Memory at
the Effective Time would be the officers of the Surviving Corporation.
The information disclosed in Item 5.02 below is hereby incorporated by reference.
The Merger Agreement provides that the directors of Merger Sub immediately prior to the Effective
Time would be the directors of the Surviving Corporation following the Merger. As a result, the
board of directors of the Surviving Corporation, effective January 5, 2009, is comprised of Frank
J. D’ Angelo, Frederick C. Kentz III, Beat Kraehenmann and Daniel Zabrowski.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
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