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 February 18, 2022, 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

BioDelivery Sciences International, Inc.

a Delaware corporation

at

$5.60 per share, in cash,

pursuant to the Offer to Purchase dated February 18, 2022

by

Bristol Acquisition Company Inc.

a wholly owned subsidiary of

Collegium Pharmaceutical, Inc.

 

Bristol Acquisition Company Inc., a Delaware corporation (“Purchaser”) and wholly owned subsidiary of Collegium Pharmaceutical, Inc., a Virginia corporation (“Collegium”), is offering to purchase all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of BioDelivery Sciences International, Inc., a Delaware corporation (“BDSI”), at an offer price of $5.60 per Share, in cash, subject to any applicable withholding taxes and without interest (the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 18, 2022 (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.

 

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT THE END OF THE DAY, ONE MINUTE
FOLLOWING 11:59 P.M., EASTERN TIME, ON MARCH 18, 2022 (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 February 14, 2022 (as it may be amended from time to time, the “Merger Agreement”), by and among Collegium, Purchaser and BDSI. 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 BDSI (the “Merger”), with BDSI continuing as the surviving corporation in the Merger and wholly owned subsidiary of Collegium. 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 BDSI’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 BDSI or any of its subsidiaries (including any treasury shares) or by Collegium or Purchaser or any other direct or indirect wholly owned subsidiaries of Collegium, which Shares will be canceled and will cease to exist or (ii) by any BDSI 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, BDSI will cease to be a publicly traded company and will become wholly owned by Collegium. 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, Collegium and Purchaser entered into Tender and Support Agreements (the “Support Agreements”) with BDSI’s directors and executive officers or certain of their affiliates, including Broadfin Capital, LLC (“Broadfin”), one of BDSI’s existing 5% beneficial holders (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 9.59% of the total outstanding Shares as of February 14, 2022, 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, (i) the absence of a termination of the Merger Agreement in accordance with its terms (the “Termination Condition”), (ii) the number of Shares validly tendered (and not validly withdrawn) prior to the time that the Offer expires, when considered together with all other Shares (if any) otherwise beneficially owned by Purchaser and its affiliates, representing at least one Share more than 50% of all issued and outstanding Shares as of immediately after the consummation of the Offer (the “Minimum Condition”), (iii) the waiting period (or any extension thereof) applicable to the Offer and the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, having expired or been terminated without action by the Federal Trade Commission (“FTC”) or U.S. Department of Justice (“DOJ”) to prevent the consummation of the Offer or the Merger or any action commenced by the FTC or DOJ in relation to the Offer or the Merger having been resolved in a manner that permits the consummation of the Offer and the Merger (the “Regulatory Condition”), and (iv) there being no temporary, preliminary or permanent law or order issued by any governmental body of competent jurisdiction that has the effect of restraining, enjoining or otherwise preventing the consummation of the Offer or the Merger (the “Order Condition”). Neither the consummation of the Offer nor the Merger is subject to any financing 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 BDSI, among other things, has unanimously (i) approved, adopted and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger (together, the “Transactions”), (ii) determined that the Transactions, including the Offer and the Merger, are in the best interest of BDSI and its stockholders, (iii) resolved that the Merger shall be governed by and effected under Section 251(h) of the DGCL and (iv) resolved to recommend that the stockholders of BDSI accept the Offer and tender their Shares to Purchaser pursuant to the Offer.

 

In certain circumstances, we are required by the terms of the Merger Agreement to extend the Offer beyond the initial Expiration Date. Subject to our rights to terminate the Merger Agreement in accordance with its terms, we must extend the Offer from time to time (i) as required by applicable legal requirements, any interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”), the staff thereof or the Nasdaq Global Select Market applicable to the Offer and (ii) if any Offer Condition is not satisfied by the then-scheduled Expiration Date to permit satisfaction of such Offer Condition(s) (subject to our right to waive any Offer Condition, other than the Minimum Condition). However, in no event will Purchaser be required to, and without BDSI’s prior written consent, will not be permitted to, extend the Offer beyond March 31, 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 August 13, 2022 (the “Extension Deadline”). 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, including the Offer Conditions (other than the Minimum Condition). However, notwithstanding the foregoing, without the prior written consent of BDSI, Purchaser is not permitted to, among other things detailed in the Offer to Purchase, (i) decrease the Offer Price, (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) impose conditions or requirements to the Offer in addition to the Offer Conditions, (v) amend or modify any of the Offer Conditions in a manner that adversely affect, or that would reasonably be expected to have an adverse effect on, any holder of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Collegium or Purchaser to consummate the Offer, the Merger or the other Transactions, (vi) amend, modify, change or waive the Minimum Condition or the Termination Condition, (vii) terminate the Offer or accelerate, extend or otherwise change the Expiration Date except in accordance with the relevant provisions of the Merger Agreement or (viii) 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 March 21, 2022, unless Purchaser 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 Collegium 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 at or 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 Offer Price 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 Collegium 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 April 19, 2022, 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 Purchaser’s determination in a court of competent jurisdiction. Purchaser’s interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto) will be determined by Purchaser in its reasonable judgement. None of Collegium, 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.

 

BDSI has provided Collegium with BDSI’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 BDSI’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 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. 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 Collegium 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) 859-8509
BDSI@dfking.com

 

February 18, 2022

 

 

 

Exhibit (b)(1)

 

Execution Version

 

STRICTLY CONFIDENTIAL

 

Pharmakon Advisors, L.P.

110 East 59^th Street, 33rd Floor

New York, NY 10022

 

February 14, 2022

 

Collegium Pharmaceutical, Inc.

100 Technology Center Drive, Suite 300

Stoughton, MA 02072

Attention: Colleen Tupper

 

$650 Million Senior Secured Term Loan Facility
Commitment Letter

 

Ladies and Gentlemen:

 

Collegium Pharmaceutical, Inc., a Virginia corporation (the “Borrower”, the “Company” or “you”), has advised Pharmakon Advisors, L.P. (“Pharmakon” or “us” or “we”) that the Company, intends to acquire (the “Acquisition”) all of the equity interests in BioDelivery Sciences International, Inc. (the “Acquired Business”) pursuant to the Agreement and Plan of Merger by and among you, Bristol Acquisition Company Inc., a Delaware corporation and a wholly owned Subsidiary of you (“Purchaser”), and the Acquired Business (including the schedules, exhibits and disclosure letters thereto, collectively, the “Acquisition Agreement”) and to consummate the other Transactions (such term and each other capitalized term used but not defined herein having the meaning assigned to such term in the Summary of Principal Terms and Conditions attached hereto as Exhibit A (the “Term Sheet”)). The “Closing Date” shall be the date of the consummation of the Acquisition.

 

1.

Commitments.

 

In connection with the foregoing, the Company hereby requests Pharmakon to be its exclusive debt financing provider for the Acquisition and the other Transactions (or any portion thereof), and we are pleased to hereby advise you of our commitment to provide, on such exclusive basis through investment funds managed by Pharmakon (each, a “Lender” and, together, the “Lenders”), 100% of the aggregate principal amount of the Term Loan Facility, upon the terms set forth in this commitment letter (including the Term Sheet and other attachments hereto, this “Commitment Letter”) and subject only to the conditions described in clauses (a) – (c) of Section 4 of this Commitment Letter.

 

 

2.

Information.

 

You hereby represent and covenant (with respect to any Information (as defined below) relating to the Acquired Business prior to the Closing Date, to the best of your knowledge) that (a) all written information with respect to you, the Acquired Business and your and its respective subsidiaries, other than the projections, estimates, forecasts, forward looking information and information of a general economic or industry nature (the “Information”) that has been or will be made available to the Lenders by you or on your behalf by any of your representatives, when taken as a whole, is or will be, when furnished, complete and correct in all material respects and, when taken as a whole, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto) and (b) the projections, estimates, forecasts and other forward looking information that have been or will be made available to the Lenders by you or on your behalf by any of your representatives have been or will be prepared in good faith based upon assumptions that are believed by you to be reasonable at the time made available to the Lenders, it being recognized by the Lenders that such projections, estimates, forecasts and other forward looking information are not to be viewed as facts or as a guarantee of performance or achievement of any particular results, that the projections, estimates, forecasts and other forward looking information are subject to significant uncertainties and contingencies many of which are beyond your control, that actual results during the period or periods covered by any such projections, estimates, forecasts and other forward looking information may differ significantly from the projected results, and that no assurance can be given that the projected results will be realized. You agree that if at any time prior to the Closing Date, any of the representations in the preceding sentence would be incorrect in any material respect if the Information or any projections were being furnished, and such representations were being made, at such time, then you will promptly supplement or, with respect to any Information relating to the Acquired Business or projections based upon Information relating to the Acquired Business, use your commercially reasonable efforts (to the extent not in contravention of the Acquisition Agreement) to cause to be supplemented, the Information and any projections so that such representations will be correct (with respect to any Information relating to the Acquired Business, to your knowledge) in all material respects under those circumstances, it being understood in each case that such supplementation shall cure any breach of such representations. Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee and Exclusivity Letter, none of the making of the foregoing representations, any supplements thereto, or the accuracy of any such representations and warranties, whether or not cured, shall constitute a condition precedent to the availability of the commitments or the obligations of Pharmakon hereunder or the initial funding of the Term Loan Facility on the Closing Date.

 

3.

Fees.

 

As consideration for the Lenders’ commitments hereunder, you agree to pay to the Lenders the fees set forth in this Commitment Letter and the Fee and Exclusivity Letter dated the date hereof and delivered herewith with respect to the Term Loan Facility (the “Fee and Exclusivity Letter”).

 

 

4.

Conditions Precedent.

 

Each of the Lenders’ commitments to the initial funding of the Term Loan Facility on the Closing Date hereunder are subject only to (a) the conditions set forth in paragraph no. 3 in Exhibit B to this Commitment Letter, (b) since the date of the Acquisition Agreement, there shall not have been any Material Adverse Effect (as defined in the Acquisition Agreement) and (c) the other conditions set forth in Exhibit B hereto; it being understood that there are no conditions (implied or otherwise) to the commitments hereunder or the initial funding of the Term Loan Facility on the Closing Date (including compliance with the terms of this Commitment Letter, the Fee and Exclusivity Letter and the Term Loan Documentation) other than the conditions set forth in clauses (a) – (c) above (and upon satisfaction or waiver by the Lenders of such conditions, the initial funding of the Term Loan Facility on the Closing Date shall occur). Notwithstanding anything in this Commitment Letter (including each of the exhibits hereto), the Fee and Exclusivity Letter or the Term Loan Documentation or any other agreement or undertaking related to the Term Loan Facility to the contrary, (i) the only representations relating to the Borrower, the Acquired Business and their respective subsidiaries and businesses the accuracy of which shall be a condition to availability of the Term Loan Facility on the Closing Date shall be (A) such of the representations made by the Acquired Business in the Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that you have the right to terminate your obligations under the Acquisition Agreement or decline to consummate the Acquisition as a result of a breach of such representations in the Acquisition Agreement (after giving effect to any applicable notice and cure provisions) (the “Acquisition Agreement Representations”) and (B) the Specified Representations (as defined below) and (ii) the terms of the Term Loan Documentation shall be in a form such that they do not impair availability of the Term Loan Facility on the Closing Date if the applicable conditions set forth in clauses (a) – (c) of this Section 4 are satisfied (or waived by the Lenders); provided that, to the extent any Collateral (including the perfection of any lien thereon or security interest therein) is not or cannot be provided on the Closing Date (other than the perfection of Collateral with respect to which a security interest may be perfected by means of (x) filing a Uniform Commercial Code financing statement in the applicable central filing office, (y) delivery of certificated securities (or, in the case of uncertificated securities, an uncertificated securities control agreement) (with respect to subsidiaries of the Acquired Business, to the extent such certificates are received from the Sellers on or prior to the Closing Date), or (z) filing a notice with the United States Patent and Trademark Office or the United States Copyright Office), after your use of commercially reasonable efforts to do so, the perfection of such liens and security interests in such Collateral shall not constitute a condition precedent to the availability of the initial funding of the Term Loan Facility on the Closing Date, but you shall be required to be provide (or, in the case of items requiring the consent or agreement of third parties, to use your commercially reasonable efforts to provide) such items within thirty days (or such longer period as the Agent may agree) after the Closing Date pursuant to arrangements to be mutually agreed. For purposes hereof, “Specified Representations” means the representations and warranties relating as to due organization, corporate power and authority, the due authorization, execution, delivery and enforceability of the Term Loan Documentation, the Term Loan Documentation not conflicting with charter documents, solvency (with solvency to be defined in a manner consistent with the form of Solvency Certificate attached as Exhibit C hereto), Federal Reserve margin regulations, Investment Company Act, PATRIOT Act and use of proceeds not violating OFAC, FCPA and other anti-terrorism, anti-money laundering, anti-corruption and sanctions laws. This paragraph, and the provisions herein, shall be referred to as the “Limited Conditionality Provisions.”

 

Each of the parties hereto agrees that each of this Commitment Letter and the Fee and Exclusivity Letter, if accepted by you by your execution and delivery hereof and thereof, is a binding and enforceable agreement with respect to the subject matter contained herein, including an agreement to negotiate in good faith the Term Loan Documentation by the parties hereto in a manner consistent with this Commitment Letter, it being acknowledged and agreed that the commitments provided hereunder are subject solely to the conditions set forth in clauses (a) – (c) in the first paragraph of this Section 4; provided, that nothing contained in this Commitment Letter or the Fee and Exclusivity Letter obligates you or any of your affiliates to consummate the Transactions; provided, however, that you hereby agree that we are the exclusive debt financing provider to the Borrower for the Acquisition and that the Borrower will draw upon all of the Term Loan Facility in the event the Borrower or any of its subsidiaries proceeds with and consummates the Acquisition.

 

 

5.

Indemnification; Expenses.

 

You agree (a) to indemnify and hold harmless Pharmakon and each of its affiliates and officers, directors, employees, agents, advisors, representatives, controlling persons, members and successors and assigns (each, an “Indemnified Person”) from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket expenses, joint or several, to which any such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Fee and Exclusivity Letter, the Transactions or the Term Loan Facility or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a third party or by you, the Acquired Business or any of your or its respective affiliates, equity holders or creditors), and to reimburse each such Indemnified Person upon demand (together with reasonable backup documentation supporting such reimbursement request) for any reasonable and documented legal or other out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing or entering into or enforcing the Commitment Letter or the Fee and Exclusivity Letter; provided that (i) the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent (A) they are found in a final, non- appealable judgment of a court of competent jurisdiction to have resulted from (X) the willful misconduct, bad faith or gross negligence of such Indemnified Person or such Indemnified Person’s officers, directors, employees, agents, advisors, representatives, controlling persons or successors or assigns (any such person, a “Related Person”) or (Y) a material breach by such Indemnified Person or any of its Related Persons of its obligations under this Commitment Letter or (B) arising from or in connection with disputes solely among or between Indemnified Persons (other than actions against the Agent in such capacity in connection with the Term Loan Facility) to the extent not relating to any acts or omissions by you, the Acquired Business or any of your or its respective affiliates or your or its Related Persons or (C) any settlement entered into by such Indemnified Person (or any of such Indemnified Person’s Related Persons) without your written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided, however, that the foregoing indemnity will apply to any such settlement in the event that you were offered the ability to assume the defense of the action that was the subject matter of such settlement and elected not to assume such defense or if there is a final judgment against an Indemnified Person in such action and (ii) your obligation to reimburse the Indemnified Persons for legal fees and expenses shall be limited to the fees, charges and disbursements of one counsel to all Indemnified Persons (and, if reasonably necessary, of one regulatory counsel and one local counsel in any relevant jurisdiction) and, solely in the case of an actual or reasonably perceived conflict of interest of which you are notified in writing, of one additional counsel (and if reasonably necessary, of one regulatory counsel and one local counsel in any relevant jurisdiction) to the affected Indemnified Persons and (b) to reimburse Pharmakon for all reasonable and documented out-of-pocket fees, and disbursements and other charges of outside counsel (limited to one counsel and, if reasonably necessary, one regulatory counsel and one local counsel in any relevant jurisdiction) incurred in connection with the Term Loan Facility and the preparation and negotiation of this Commitment Letter, the Fee and Exclusivity Letter, the Term Loan Documentation and any ancillary documents in connection therewith.

 

 

You agree that, notwithstanding any other provision of this Commitment Letter, Pharmakon and each of its affiliates and officers, directors, employees, agents, advisors, representatives, controlling persons, members and successors and assigns shall have no liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equity holders or creditors or any other person arising out of, related to or in connection with any aspect of the Transactions, except to the extent of direct, as opposed to special, indirect, consequential or punitive, damages determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from Pharmakon’s gross negligence or willful misconduct. You will not be responsible to us or any other person or entity for any special, indirect, consequential or punitive damages which may be alleged as a result of this Commitment Letter, the Fee and Exclusivity Letter or the Transactions; provided, that your indemnity and reimbursement obligations under this Section 5 shall not be limited by this sentence.

 

6.

Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities.

 

You acknowledge that Pharmakon and its affiliates may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein or otherwise. Consistent with our policy to hold in confidence the affairs of our customers, we will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you to other companies. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us or any of our respective affiliates from other companies.

 

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and Pharmakon is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether Pharmakon has advised or is advising you on other matters, (b) Pharmakon, on the one hand, and you, on the other hand, have an arm’s-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of Pharmakon, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, (d) you have been advised that Pharmakon is engaged in a broad range of transactions that may involve interests that differ from your interests and that Pharmakon has no obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship and (e) you waive, to the fullest extent permitted by law, any claims you may have against Pharmakon for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the transactions contemplated by this Commitment Letter and agree that Pharmakon shall have no liability (whether direct or indirect) to you in respect of such a fiduciary duty claim or to any person asserting such a fiduciary duty claim on behalf of or in right of you, including your equity holders, employees or creditors. Additionally, you acknowledge and agree that Pharmakon is not advising you as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction (including, without limitation, with respect to any consents needed in connection with the transactions contemplated hereby). You shall consult with your own advisors concerning such matters and shall be responsible for making your own independent investigation and appraisal of the transactions contemplated hereby (including, without limitation, with respect to any consents needed in connection therewith), and Pharmakon shall not have any responsibility or liability to you with respect thereto. Any review by Pharmakon of you, the Acquired Business, the Transactions, the other transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of Pharmakon and shall not be on behalf of you or any of your affiliates.

 

 

You further acknowledge that Pharmakon and/or its affiliates is a specialist investor in debt from the life sciences industry. In the ordinary course of business, Pharmakon may make investments in counterparties in the life sciences industry, including the acquisition, holding or selling, for its own accounts and the accounts of its investors, of investments in debt assets secured by royalties or other cash flows derived from the sales of approved life sciences products, other debt assets, equity and other securities and financial instruments (including loans and other obligations) of you, the Acquired Business and other companies with which you or the Acquired Business may have commercial or other relationships. With respect to any securities and/or financial instruments so held by Pharmakon, its affiliates or any of their respective investors, all rights in respect of any such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

 

7.

Assignments; Amendments; Governing Law, Etc.

 

This Commitment Letter shall not be assignable by you without our prior written consent (and any attempted assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto (and Indemnified Persons), and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons).

 

 

Each of the Lenders may assign its commitments hereunder with your prior consent (not to be unreasonably withheld or delayed) to one or more prospective lenders; provided that such Lender shall not be released from the portion of its commitment hereunder so assigned prior to the funding of the Term Loan Facility. Any and all obligations of us hereunder (including, without limitation, the Lenders’ commitments) may be performed and any and all of our rights hereunder may be exercised by or through any of our respective affiliates and, in connection with such performance or exercise and subject to the restrictions set forth in Section 10 below, we may exchange with such affiliates information concerning you and your affiliates that may be the subject of the transactions contemplated hereby and, to the extent so employed, such affiliates shall be entitled to the benefits afforded to us, and subject to the terms and obligations applicable to us, hereunder. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed and executed by the parties hereto. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. Any signature to this Commitment Letter may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of this Commitment Letter. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. Notwithstanding anything in Section 10 to the contrary, Pharmakon may, subject to your review and consent (such consent not to be unreasonably withheld or delayed) and subject to the obligations of the Borrower or its affiliates pursuant to the Acquisition Agreement, make disclosures, after the closing of the Transactions, in the form of a press release or otherwise describing the names of you and your affiliates (or any of them), and the amount, type and closing date of such Transactions. This Commitment Letter and the Fee and Exclusivity Letter supersede all prior understandings, whether written or oral, between us with respect to the Term Loan Facility. THIS COMMITMENT LETTER AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS COMMITMENT LETTER (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT (A) THE INTERPRETATION OF THE DEFINITION OF MATERIAL ADVERSE EFFECT (AND WHETHER OR NOT A MATERIAL ADVERSE EFFECT HAS OCCURRED OR WOULD REASONABLY BE EXPECTED TO OCCUR), (B) THE DETERMINATION OF THE ACCURACY OF ANY ACQUISITION AGREEMENT REPRESENTATIONS AND WHETHER AS A RESULT OF ANY INACCURACY OF ANY ACQUISITION AGREEMENT REPRESENTATION YOU (OR YOUR AFFILIATES) HAVE THE RIGHT TO TERMINATE YOUR (OR YOUR AFFILIATES’) OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR TO DECLINE TO CONSUMMATE THE ACQUISITION AND (C) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT SHALL, IN EACH CASE, BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS AND JUDICIAL DECISIONS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS EXECUTED AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAWS PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.

 

8.

Jurisdiction.

 

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America, in each case, sitting in the Borough of Manhattan in New York City, and any appellate court from any thereof, in any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee and Exclusivity Letter or the transactions contemplated hereby or thereby, and agrees that all claims in respect of any such suit, action or proceeding may be heard and determined only in such New York State court or, to the extent permitted by law, in such Federal court; provided that suit for the recognition or enforcement of any judgment obtained in any such New York State or Federal court may be brought in any other court of competent jurisdiction, (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee and Exclusivity Letter or the transactions contemplated hereby or thereby in any New York State court or in any such Federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Service of any process, summons, notice or document by registered mail addressed to you at the address above shall be effective service of process against you for any suit, action or proceeding brought in any such court.

 

 

9.

Waiver of Jury Trial.

 

EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER, THE FEE AND EXCLUSIVITY LETTER OR THE PERFORMANCE OF SERVICES HEREUNDER OR THEREUNDER.

 

10.

Confidentiality.

 

This Commitment Letter is delivered to you on the understanding that neither this Commitment Letter nor the Fee and Exclusivity Letter nor any of their respective terms or substance, nor the activities of Pharmakon pursuant hereto, shall be disclosed, directly or indirectly, to any other person without the prior written approval of Pharmakon (such approval not to be unreasonably withheld or delayed) except (a) to your affiliates’ officers, directors, employees, attorneys, accountants and advisors, in each case, on a confidential and need-to-know basis or (b) in any legal, judicial or administrative proceeding or as otherwise required by applicable law or compulsory legal process or as requested by a governmental or regulatory authority or by any applicable stock exchange (in which case you agree to inform us promptly thereof prior to such disclosure, to the extent reasonably practicable and permitted by law, and if you are unable to notify us prior to such disclosure, to inform us promptly thereafter); provided that you may disclose (i) this Commitment Letter and the contents hereof (1) in any public or regulatory filing or in any prospectus or offering document relating to the Transactions or any financing undertaken by you or your affiliates after the date hereof, to the extent customary or required, and (2) in connection with the exercise of remedies hereunder or in any suit, action or proceeding relating to this Commitment Letter, the Fee and Exclusivity Letter or the transactions contemplated hereby or thereby or enforcement hereof and thereof, (ii) the aggregate amounts contained in the Fee and Exclusivity Letter as part of projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in offering and marketing materials for any securities to be issued by you or any of your affiliates or to the extent customary or required in any public or regulatory filing relating to the Transactions and (iii) this Commitment Letter and a version of the Fee and Exclusivity Letter that has been redacted in a manner reasonably satisfactory to the Agent, to the Acquired Business and its officers, directors, employees, attorneys, accountants and advisors, in each case, on a confidential and need-to-know basis; provided that the foregoing restrictions shall cease to apply to the extent such information becomes publicly available other than by reason of disclosure in violation of this paragraph. The provisions of this paragraph shall automatically terminate two years following the date of this Commitment Letter.

 

 

Pharmakon hereby agrees to treat as confidential all confidential information provided to it by or on behalf of you hereunder; provided that nothing herein shall prevent Pharmakon from disclosing such information (a) to its affiliates and its and its affiliates’ respective officers, directors, employees, attorneys, accountants and advisors (collectively, the “Representatives”) on a confidential and need-to-know basis and who are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential (with Pharmakon responsible for its Representatives compliance with this paragraph), (b) to the Agent or any Lender, (c) in any legal, judicial or administrative proceeding or as otherwise required by applicable law or compulsory legal process or as requested by a governmental or regulatory authority (in which case Pharmakon agrees to inform you promptly thereof prior to such disclosure, to the extent reasonably practicable and permitted by law, and if Pharmakon is unable to notify you prior to such disclosure, to inform you promptly thereafter to the extent reasonably practicable and permitted by law), (d) as requested by any state, federal or foreign authority or examiner regulating banks and banking, (e) in connection with the exercise of remedies hereunder or in any suit, action or proceeding relating to this Commitment Letter, the Fee and Exclusivity Letter or the transactions contemplated hereby or thereby or enforcement hereof and thereof, (f) to actual or potential assignees, participants or derivative investors in the Term Loan Facility who agree to be bound by the terms of this paragraph or substantially similar confidentiality provisions, (g) to the extent permitted by Section 7; (h) for purposes of establishing a “due diligence” defense, or (i) to the extent you consent to such disclosure; provided that the foregoing restrictions shall cease to apply to the extent such information becomes publicly available other than by reason of disclosure in violation of this paragraph. The provisions of this paragraph shall automatically terminate upon the execution and delivery of the Term Loan Documentation or, in any event, two years following the date of this Commitment Letter.

 

Notwithstanding anything herein to the contrary, any party to this Commitment Letter (and any employee, representative or other agent of such party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Commitment Letter and the Fee and Exclusivity Letter and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure. For this purpose, the tax treatment of the transactions contemplated by this Commitment Letter and the Fee and Exclusivity Letter is the purported or claimed U.S. Federal income tax treatment of such transactions and the tax structure of such transactions is any fact that may be relevant to understanding the purported or claimed U.S. Federal income tax treatment of such transactions. It is agreed and understood that, except to the extent relevant to the tax treatment or tax structure of such transactions, the identity of any existing or future party (or any affiliate of such party) to this Commitment Letter shall not be disclosed without the consent of such party (such consent not to be unreasonably withheld).

 

 

11.

Surviving Provisions.

 

The compensation, reimbursement, indemnification, confidentiality, jurisdiction, governing law and waiver of jury trial provisions contained herein and in the Fee and Exclusivity Letter and the provisions of Section 6 of this Commitment Letter shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and (other than in the case of the syndication provisions) notwithstanding the termination of this Commitment Letter or the Lenders’ commitments hereunder; provided that your obligations under this Commitment Letter, other than those relating to confidentiality and compensation (which shall remain in full force and effect), shall, to the extent covered by the Term Loan Documentation, automatically terminate and be superseded by the applicable provisions contained in the Term Loan Documentation.

 

12.

PATRIOT Act Notification.

 

Pharmakon hereby notifies you that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), the Agent and each of the Lenders is required to obtain, verify and record information that identifies you and each Guarantor, which information includes the name, address, tax identification number and other information (including, for the avoidance of doubt, a certification regarding beneficial ownership as required by 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”)) regarding you and each Guarantor that will allow the Agent or such Lender to identify you and each Guarantor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to the Agent and each of the Lenders. You hereby acknowledge and agree that the Agent shall be permitted to share any or all such information with the Lenders.

 

13.

Termination.

 

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee and Exclusivity Letter by returning to Pharmakon, executed counterparts hereof and of the Fee and Exclusivity Letter not later than 11:59 p.m., New York City time, on February 14, 2022. The Lenders’ commitments hereunder will expire at such time in the event that we have not received such executed counterparts in accordance with the immediately preceding sentence. If you do so execute and deliver to Pharmakon this Commitment Letter and the Fee and Exclusivity Letter, this Commitment Letter and each of the Lenders’ commitments hereunder shall automatically terminate without further action or notice and without further obligation to you (unless Pharmakon shall, in its discretion, agree to an extension in writing) upon the earliest of (x) 11:59 p.m., New York City time, on the date that is five (5) Business Days (as defined in the Acquisition Agreement) after the End Date (as defined in the Acquisition Agreement), (y) the termination of the Acquisition Agreement in accordance with its terms without the consummation of the Acquisition and (z) the consummation of the Acquisition with or without the funding of the Term Loan Facility.

 

[Remainder of this page intentionally left blank]

 

 

We are pleased to have been given the opportunity to assist you in connection with the financing for the Term Loan Facility.

 

	Very truly yours,
	PHARMAKON ADVISORS, LP
	By:	/s/ Pedro Gonzalez de Cosio
		Name:	Pedro Gonzalez de Cosio
		Title:	Chief Executive Officer

 

[Signature Page to Commitment Letter]

 

 

Accepted and agreed to
as of the date first
above written:

 

COLLEGIUM PHARMACEUTICAL, INC.
By:	/s/ Joseph Ciaffoni
	Name:	Joseph Ciaffoni
	Title:	President and Chief Executive Officer

 

[Signature Page to Commitment Letter]

 

 

Exhibit A

 

$650 Million Senior Secured Term Loan Facility
Summary of Principal Terms and Conditions

 

Set forth below is a summary of the principal terms for the Term Loan Facility. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Commitment Letter to which this Exhibit A is attached (the “Commitment Letter”) (including the Annex hereto) or in Exhibit B attached thereto.

 

Borrower:	Collegium Pharmaceutical, Inc., a Virginia corporation (the “Borrower”).
Transactions:	The Borrower, intends to acquire (the “Acquisition”) BioDelivery Sciences International, Inc. (the “Acquired Business”) pursuant to the Acquisition Agreement.  The Borrower also intends to obtain financing in the form of senior secured term loans from BPCR Limited Partnership and BioPharma Credit Investments V (Master) LP, investment funds managed by Pharmakon Advisors, LP, in an aggregate principal amount equal to up to $650 million.  The Borrower intends to use the proceeds of the Term Loan Facility, together with cash on hand, (a) to fund the Acquisition and (b) to pay certain fees and expenses in connection with the Acquisition.  In connection with the foregoing transactions, the Borrower intends to repay in full all indebtedness outstanding under that certain Loan Agreement by and among the Borrower, the guarantors from time to time party thereto, the Lenders and BioPharma Credit PLC, as collateral agent, dated as of February 6, 2020, as amended by that certain First Amendment to Loan Agreement, dated as of February 24, 2020, and that certain Second Amendment to Loan Agreement, dated as of May 27, 2020 (collectively, the “Existing Loan Agreement”) and pay any and all associated costs and expenses incurred under the Loan Documents (as such term is defined in the Loan Agreement), other than any amounts payable in connection with such prepayment pursuant to Section 2.2(f) of the Loan Agreement (the “Repayment”).  The transactions described in this paragraph are collectively referred to herein as the “Transactions”.
Guarantors:	All obligations of the Borrower under the Term Loan Facility will be unconditionally guaranteed (the “Guarantees”) by each existing and subsequently acquired or organized, directly or indirect, material subsidiary of the Borrower (the “Guarantors”), including, without limitation, each of the subsidiaries of the Borrower which are guarantors under the Existing Loan Agreement.
Collateral Agent:	BioPharma Credit, PLC (in its capacity as collateral agent, but not as a payment agent, the “Agent”).

 

 

Lenders:	BPCR Limited Partnership and BioPharma Credit Investments V (Master) LP, investment funds managed by Pharmakon Advisors, LP (each, a “Lender” and, collectively, the “Lenders”).  Each Lender will be responsible to fund 50.0% of the aggregate principal amount of the Loans (such percentage, the “Applicable Percentage”).
Amount of Facility:	Senior secured term loans (the “Loans”) in an aggregate principal amount of up to $650 million (the “Term Loan Facility”).
Security/Ranking:	The Term Loan Facility and the Guarantees will be secured by a valid and perfected first priority lien on substantially all of the owned assets of the Borrower and each Guarantor, whether owned on the Closing Date or thereafter acquired (collectively, the “Collateral”), including, but not limited to: (a)  all the material equity interests and debt held by the Borrower or any Guarantor, (b)  substantially all owned tangible and intangible assets of the Borrower and each Guarantor (to the extent that the lien on such assets can be perfected through the filing of a financing statement or through entering into a deposit account control agreement and certain other customary exceptions) including, but not limited to, inventory, accounts receivable, equipment, general intangibles, intercompany debt, chattel paper, licenses, permits, intellectual property, documents, instruments, indemnification rights, tax refunds, commercial tort claims, letter of credit rights, hedge agreements, investment property, deposit and securities accounts, wherever located, (c) material owned real property and related fixtures, and (d) all proceeds and products of the foregoing.  Notwithstanding the foregoing, the following assets will be excluded from Collateral: (i) all leasehold interests, (ii) all motor vehicles and other assets subject to certificates of title, (iii) any immaterial fee-owned real property and letter of credit rights, (iv) all contracts, licenses and permits to the extent the grant of a security interest therein is prohibited by contract or law, (v) upon the Borrower’s request, any assets with respect to which the Lender reasonably determines that the costs of obtaining are excessive in relation to the value of the security to be afforded thereby to the Lender, (vi) certain deposit accounts, including any zero balance accounts, fiduciary accounts, and any account used for payroll, and (vii) certain other assets which are encumbered by certain permitted liens or are customarily excluded.
Availability:	One drawing to be made under the Term Loan Facility on the Closing Date.

 

 

Additional Consideration /Expenses:	1.00% of the aggregate principal amount of the Loans, to be paid by the Borrower on the Closing Date. The Borrower shall pay or reimburse the Lenders and the Agent for: (a) all reasonable and documented costs and expenses incurred in connection with the preparation, negotiation, execution and delivery of the Term Loan Documentation, including the reasonable and documented fees and disbursements of legal counsel and filing and recording fees and expenses; (b) all its documented costs and expenses incurred in connection with any amendment, supplement or modification to, the Term Loan Documentation; and (c) all its documented costs and expenses incurred in connection with the enforcement or preservation of any rights under the Term Loan Documentation, including the reasonable and documented fees and disbursements of legal counsel.
Purpose/Use of Proceeds:	The proceeds of the Term Loan Facility, together with cash on hand, will be used to fund the Transactions.
Maturity Date:	The Loans shall be repaid in full on the date that is 48 months after the Closing Date (the “Maturity Date”).
Amortization:	The Borrower will make quarterly payments of principal of the Loans commencing on the first payment date following the Closing Date and continuing on each subsequent payment date, in an amount equal to (a) $25,000,000.01 in each of the first four quarters following the Closing Date, and (b) $45,833,333.33 in each of the remaining 12 quarters thereafter.
Interest Rate:	All amounts outstanding under the Term Loan Facility will bear interest at the LIBOR Rate LIBOR plus 7.50% per annum (the “Interest Rate”).
	As used herein, the term “LIBOR Rate” means the rate per annum equal to USD LIBOR as published on the applicable Bloomberg LIBOR page administered by the ICE Benchmark Administration for Dollars for a period equal in length to three (3) months, and otherwise will have the meaning as is customary and appropriate for term loan financings subject only to a LIBOR Rate “floor” of 1.20%; provided that the Term Loan Documentation (as defined below) will contain customary “hardwired” LIBOR replacement provisions.
	After the occurrence and during the continuance of any payment or bankruptcy event of default, upon notice from the Agent (whether or not at the direction of the Requisite Lenders (as defined below)), interest on overdue amounts will accrue at a rate equal to the rate then applicable thereto plus an additional 3.00% per annum.  Such interest will be payable on demand.

 

 

Interest Payments:	Except as set forth below, interest will be payable quarterly in arrears and computed on the basis of actual days elapsed in a 360-day year.
Voluntary Prepayments:	Voluntary prepayment of the borrowings under the Term Loan Facility will be permitted at any time in an amount equal to all, but not less than all, principal amounts outstanding.  Voluntary Prepayment must be accompanied by payments of accrued and unpaid interest through the repayment date and any applicable Make-whole Premium and Prepayment Premium.
Mandatory Prepayment:	The Term Loan Facility will be subject to prepayment upon the occurrence of a “Change of Control” (to be defined in a customary manner for Pharmakon facilities to include mergers or consolidations, as a result of which the stockholders of the Company cease to beneficially own a majority of voting stock of the Company, or the sale of all or substantially all consolidated assets) at 100% of the outstanding principal amount thereof, plus accrued and unpaid interest through the repayment date and any applicable Make-whole Premium and Prepayment Premium.
Prepayment Premium:	In connection with any prepayment or maturity of the Loans under the Term Loan Facility prior to the second anniversary of the Closing Date, the Borrower will pay a prepayment premium of 2.00% of the principal amount of the Term Loan Facility prepaid.  In connection with any prepayment of the Loans under the Term Loan Facility after the second anniversary of the Closing Date but prior to the fourth anniversary of the Closing Date, the Borrower will pay a prepayment premium of 1.00% of the principal amount of the Term Loan Facility prepaid.
Make-whole Premium:	In connection with any prepayment or maturity of the Loans under the Term Loan Facility prior to the second year anniversary of the Closing Date, the Borrower will pay a make-whole premium in an amount equal to foregone interest through the second year anniversary of the Closing Date.

 

 

Documentation:	The definitive financing documentation for the Term Loan Facility (the “Term Loan Documentation”) shall contain the terms set forth in the Commitment Letter and this Term Sheet and shall otherwise be negotiated in good faith within a reasonable time period to be determined based on the expected Closing Date and substantially consistent with the Existing Loan Agreement (and the other Loan Documents (as such term is defined in the Existing Loan Agreement), as applicable), as modified (i) to accommodate the structure of the Transactions, (ii) to reflect no financial covenants and no limitations on the acquisition or in-licensing of assets, (iii) to take into account the assets, properties, products and operations of the Borrower and its subsidiaries (after giving effect to the Acquisition) in the representations, warranties and covenants, (iv) to reflect changes in law, applicable regulations or accounting standards and (v) to include “hardwired” LIBOR replacement provisions.  The principles, modifications and requirements of the immediately preceding sentence are referred to collectively as the “Term Loan Documentation Principles”.  Notwithstanding the foregoing, the only conditions to the availability of the Term Loan Facility on the Closing Date shall be those set forth in clauses (a) – (c) of the first paragraph of Section 4 in the Commitment Letter.  Notwithstanding any of the foregoing, the Term Loan Documentation shall contain only those representations and warranties, events of default and covenants as set forth in this Term Sheet.
Representations and Warranties:	The Term Loan Documentation will contain representations and warranties consistent with the Term Loan Documentation Principles and otherwise customary for term loan financings of this kind, including with respect to exceptions and qualifications,  subject to thresholds to be agreed upon and in any event that are no less favorable to the Borrower, taken as a whole, than the representations and warranties set forth in the Existing Loan Agreement, including but not limited to: organization, existence and power; authorization; execution and delivery; enforceability; no conflict with charter documents or applicable law; litigation and adverse proceedings; Federal Reserve Margin regulations; OFAC, FCPA, Patriot Act and other similar money laundering or anti-terrorism laws; compliance with health care and data protection laws, the Investment Company Act; solvency of the Borrower and its subsidiaries (on a consolidated basis); no senior indebtedness; and validity, priority and perfection of security interests in the Collateral.

 

 

Affirmative Covenants:	The Term Loan Documentation will contain affirmative covenants (but no financial covenants or limitations on the acquisition or in-licensing of assets) by the Borrower (with respect to the Borrower and its subsidiaries) as are usual and customary for term loan financings of this kind and consistent with the Term Loan Documentation Principles, including but not limited to: maintenance of corporate existence and rights; delivery of consolidated financial statements (accompanied, in the case of annual financial statements, by an audit opinion from nationally recognized auditors that is not subject to any qualification as to “going concern” or the scope of such audit) and other information of the Borrower; delivery of notices of default, material litigation, ERISA events and material adverse change; maintenance of properties in good working order; maintenance of books and records; maintenance of customary insurance; compliance with laws; inspection of books and properties; environmental; additional guarantors; additional material real estate assets; newly-formed or acquired material domestic subsidiaries; use of proceeds; and payment of taxes.
Negative Covenants	The Term Loan Documentation will contain negative covenants (but no financial covenants or limitations on the acquisition or in-licensing of assets) by the Borrower (with respect to the Borrower and its subsidiaries) as are usual and customary for term loan financings of this kind and consistent with the Term Loan Documentation Principles, subject to thresholds to be agreed upon (where applicable), including (but not limited) with respect to: limitations on restricted payments, limitations on other indebtedness, limitations on liens and limitations on the sale or other disposition of material assets.
Events of Default:	The Term Loan Documentation will include events of default as are usual and customary for term loan financings of this kind, subject to grace periods and materiality qualifiers in accordance with the Term Loan Documentation Principles, including but not limited to: nonpayment of principal, interest or other amounts; material adverse effect; violation or breach of covenants or agreements in the Term Loan Documentation; breach of or inaccuracy in, in any material respect (or in all respects where qualified by materiality) of representations or warranties in the Term Loan Documentation; cross default and cross acceleration; bankruptcy and similar events; material judgments or orders; ERISA events; actual or asserted invalidity of guarantees or security documents in each case representing a material portion of the Guarantees; material adverse effect; and change of control.

 

 

	In the event any Event of Default occurs and is continuing, the Loans under the Term Loan Facility (with accrued interest thereon) and all other amounts owing under the Term Loan Facility will become due and payable, including, without limitation, any applicable Make-whole Premium and Prepayment Premium.
Conditions to Borrowing on the Closing Date:	The availability of the initial borrowings under the Term Loan Facility on the Closing Date will be subject only to the conditions set forth in clauses (a) – (c) of the first paragraph of Section 4 in the Commitment Letter and no other conditions.
Assignments and Participations:	Each of the Lenders will be permitted to assign any or all of its rights and obligations with respect to the Loans under the Term Loan Facility to third parties (other than a competitor of the Borrower, except when an Event of Default has occurred and is continuing) and will be permitted to grant or sell participations in any such rights or obligations to third parties (other than a competitor of the Borrower except when an Event of Default has occurred and is continuing), in each case, without the consent of the Borrower.
Requisite Lenders:	Amendments and waivers will require the approval of Lenders        representing more than 50% of the sum of the then-outstanding principal amount of the Loans under the Term Loan Facility (“Requisite Lenders”).
Indemnity:	The Term Loan Documentation will provide customary and appropriate provisions relating to indemnity and related matters.
Governing Law and Jurisdiction:	The State of New York.  The Term Loan Documentation will provide that the Borrower and the Guarantors will submit to the exclusive jurisdiction and venue of the federal and state courts of the State of New York located in the Borough of Manhattan, the City of New York and will waive any right to trial by jury.
Counsel to the Lenders and Agent:	Akin Gump Strauss Hauer & Feld LLP

 

 

Exhibit B

 

$650 Million Senior Secured Term Loan Facility
Summary of Additional Conditions Precedent¹

 

The availability of and borrowings under the Term Loan Facility shall be subject to the following additional conditions precedent:

 

1.

The Acquisition shall be consummated substantially concurrently with the funding of the Term Loan Facility in accordance in all material respects with the Acquisition Agreement without waivers or amendments thereof that are materially adverse when taken as a whole to the interests of the Lenders unless consented to by the Lenders (such consent not to be unreasonably withheld, delayed or conditioned); it being understood that (a) no reduction in the purchase price shall be deemed to be materially adverse to the interests of the Lenders if such reduction is applied to reduce the commitments under Term Loan Facility on a dollar-for-dollar basis, (b) no increase in the purchase price shall be deemed to be materially adverse to the interests of the Lenders if such increase is funded solely with cash common equity and (c) any change to the definition of Material Adverse Effect (as defined in the Acquisition Agreement) shall be deemed materially adverse to the interests of the Lenders and shall require the consent of the Lenders (such consent not to be unreasonably withheld, delayed or conditioned).

 

2.

The Agent and each of the Lenders shall have received (a) audited consolidated balance sheets of the Acquired Business for each of the three most recent fiscal years ending at least 90 days prior to the Closing Date and the related audited consolidated statements of income, cash flows and stockholders’ equity of the Acquired Business for such fiscal year, (b) unaudited consolidated balance sheets of the Acquired Business for each fiscal quarter ending after the date of the most recent balance sheets delivered pursuant to clause (a) (other than the fourth fiscal quarter of any fiscal year) and at least 45 days prior to the Closing Date and the related unaudited consolidated statements of income and cash flows of the Acquired Business for the portion of the fiscal year then ended. Pharmakon hereby acknowledges receipt by the Agent and each of the Lenders of the financial statements for the fiscal years ended December 31, 2020 and 2019 and the quarters ended March 31, June 30 and September 30, 2021.

 

3.

Subject in all respects to the Limited Conditionality Provisions, the Borrower and each of the Guarantors shall have executed (where applicable) and delivered to the Agent and each of the Lenders (a) the Term Loan Documentation, which shall contain the terms set forth in the Commitment Letter and the Term Sheet, (b) a borrowing notice, legal opinions, corporate documents and officers’ certificates, including a customary certificate from the chief financial officer of the Borrower as to solvency of the Borrower and its subsidiaries on a consolidated basis after giving effect to the Transactions (which certificate shall be in the form attached hereto as Exhibit C), and (c) good standing certificates (to the extent applicable) in the respective jurisdictions of organization of the Borrower and such Guarantors, in each case customary for term loan financings of the type described herein.

 

¹ All capitalized terms used but not defined herein have the meanings given to them in the Commitment Letter to which this Exhibit B is attached, including Exhibit A thereto.

 

 

4.

The Agent and each of the Lenders shall have received, at least three business days prior to the Closing Date, all documentation and other information related to the Borrower required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation, in each case to the extent reasonably requested by the Agent from the Borrower in writing at least 10 business days prior to the Closing Date.

 

5.

All commitment fees due and required to be paid prior to the Closing Date to each of the Lenders pursuant to the Commitment Letter and the Fee and Exclusivity Letter shall, prior to the initial borrowing under the Term Loan Facility, have been paid in accordance with the terms thereof, and all ticking fees due and required to be paid on the Closing Date to each of the Lenders pursuant to the Commitment Letter and the Fee and Exclusivity Letter shall, upon the initial borrowing under the Term Loan Facility, have been paid.

 

6.

All additional consideration due and required to be paid on the Closing Date to each of the Lenders pursuant to the Commitment Letter and the Fee and Exclusivity Letter shall, upon the initial borrowing under the Term Loan Facility, shall have been paid on the Closing Date by offset against the proceeds of the Loans under the Term Loan Facility, and all reasonable and documented out-of-pocket fees, costs and expenses (including, without limitation, all fees, costs and expenses of Akin Gump Strauss Hauer & Feld LLP, legal counsel to the Lenders (plus any necessary local counsel)) incurred by each of the Lenders and to be paid or reimbursed on the Closing Date pursuant to the Commitment Letter and the Fee and Exclusivity Letter that have been invoiced at least three business days prior to the Closing Date shall have been paid on the Closing Date by offset against the proceeds of the Loans under the Term Loan Facility.

 

7.

The Specified Representations and the Acquisition Agreement Representations shall be true and correct in all material respects or, if qualified by materiality or material adverse effect, in all respects.

 

8.

Substantially concurrent with the initial funding of the Term Loan Facility on the Closing Date: (a) all existing indebtedness for borrowed money of the Acquired Business outstanding on the Closing Date under that certain Loan Agreement, dated as of May 23, 2019, by and among BioDelivery Sciences International, Inc., BPCR Limited Partnership, as lender, and the other parties from time to time party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), will be repaid in full, and all commitments to lend and any and all guarantees and security interests (if any) in connection therewith shall be terminated and/or released; and (b) all existing indebtedness for borrowed money of the Company outstanding on the Closing Date under the Existing Loan Agreement, will be repaid in full, and all commitments to lend and any and all guarantees and security interests (if any) in connection therewith shall be terminated and/or released.

 

 

Exhibit C

 

FORM OF SOLVENCY CERTIFICATE

 

[DATE]

 

This Solvency Certificate is being executed and delivered pursuant to Section [●] of the Loan Agreement, dated as of the date hereof (the “Loan Agreement”), by and among Collegium Pharmaceutical, Inc., a Virginia corporation (the “Borrower”), the lenders party thereto and BioPharma Credit PLC, as collateral agent. Capitalized terms used but not otherwise defined herein have the meanings assigned to such terms in the Loan Agreement.

 

I am the duly qualified and acting Chief Financial Officer of the Borrower, and in such capacity and not in an individual capacity, I certify as follows:

 

As of the date hereof, immediately after the consummation of the Transactions, (i) the fair value of the assets of the Borrower and its Subsidiaries on a consolidated basis will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Borrower and its Subsidiaries on a consolidated basis, respectively; (ii) the present fair saleable value of the property of the Borrower and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of the Borrower and its Subsidiaries on a consolidated basis, respectively, on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Borrower and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Borrower and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted after the date hereof.

 

 

 

Exhibit (d)(4)

 

CONFIDENTIAL DISCLOSURE AGREEMENT

 

This Confidential Disclosure Agreement (the “Agreement”), dated as of December 29, 2021 (the “Effective Date”), is by and between Collegium Pharmaceutical, Inc., having an address at 100 Technology Center Drive, Suite 300, Stoughton, MA 02072 (“Collegium”) and BioDelivery Sciences International, Inc., having an address at 4131 ParkLake Ave., Suite 225, Raleigh, NC 27612 (“BDSI”) (each a “Party” and collectively, the “Parties”). The Parties intend to engage in discussions to evaluate a possible negotiated business combination transaction between the Parties (the “Purpose”). In the course of these discussions, either Party may elect to disclose certain of its Confidential Information (defined below). This Agreement describes the Parties’ obligations to maintain the confidentiality of such Confidential Information and protect such Confidential Information from unauthorized use and disclosure. In consideration for such disclosure, the Parties hereby agree as follows:

 

1.

As used in this Agreement, the term “Confidential Information” includes, without limitation, any technical, scientific, trade, research, manufacturing, business, financial (including sales), marketing, product, supplier, intellectual property or other information, including any and all analyses, compilations, forecasts, financial projections, data, trials, studies or other information, prepared by a Party or Representative (as defined below) of a Party that contain, are based on, or otherwise reflect any such information, that may be disclosed by a Party or its directors, officers, employees, Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), collaboration partners, representatives (including, without limitation, financial advisors, consultants, attorneys or accountants) or agents (collectively, “Representatives”). The party providing information hereunder is referred to as the “Disclosing Party” and the party receiving information hereunder is referred to as the “Receiving Party”, regardless of whether such information is specifically designated as confidential and regardless of whether such information is in written, oral, electronic, or other form. The existence of this Agreement, the fact that Confidential Information is being disclosed to the Receiving Party, and the fact that discussions or negotiations are taking place concerning the Purpose, including any terms, conditions or other facts, shall be considered Confidential Information.

 

2.

Confidential Information shall not be deemed to include information which: (a) was in the public domain or in the Receiving Party’s possession prior to the time of its disclosure under this Agreement, other than as a result of the Receiving Party’s breach of any legal obligation; (b) entered the public domain after the time of its disclosure under this Agreement through means other than an unauthorized disclosure resulting from an act or omission by the Receiving Party; (c) is independently developed by the Receiving Party without use of, or reference to, the Confidential Information; or (d) is disclosed to the Receiving Party without restriction by a third party having the right to make such disclosure.

 

3.

The Receiving Party agrees that it shall: (a) keep confidential the Confidential Information; (b) use the Disclosing Party’s Confidential Information solely for the Purpose; (c) disclose the Disclosing Party’s Confidential Information only on a need-to-know basis to effect the Purpose and only to its Representatives who are bound by written or ethical obligations of confidentiality commensurate with those set forth in this Agreement; and (d) as the other Party may otherwise consent in writing.

 

 

4.

Each Party is responsible for any actions by its Representatives (including, without limitation, any Representatives who subsequent to the date hereof become its former Representatives) which are inconsistent with the provisions of this Agreement or would otherwise constitute a breach of this Agreement and shall, at its sole expense, take all reasonable measures to restrain its Representatives from prohibited disclosure or use of the Confidential Information in breach of the terms hereof. Each Party shall notify the other if it has knowledge of a breach of any provision of this Agreement by such Party or any of its Representatives, and the Parties shall cooperate to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.

 

5.

Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be prohibited to the extent required to comply with applicable laws or regulations, or with a valid court or administrative order, provided that the Receiving Party: (a) promptly notifies the Disclosing Party prior to such disclosure in writing of the existence, terms and circumstances of such required disclosure; (b) consults with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such disclosure; and (c) takes all reasonable best and lawful actions to obtain confidential treatment for such disclosure.

 

6.

This Agreement shall remain in effect for a period of one (1) year from the Effective Date; provided, however, that the Receiving Party’s obligations of non-disclosure and non-use hereunder shall continue for a period of five (5) years from the Effective Date. Either Party may terminate this Agreement by providing written notice to the other Party; however, the duration of the Receiving Party’s obligations of non-disclosure and non-use for Confidential Information disclosed prior to such early termination as well as each Party’s non-solicitation obligations and restrictions on unsolicited acquisition activities shall not be altered by any such early termination.

 

7.

In the event either Party determines not to proceed with a business relationship, it shall promptly inform the other Party of that decision. In that case or at any other time upon the request of the Disclosing Party or any of its Representatives, the Receiving Party shall (i) promptly, at the Receiving Party’s election, either destroy or deliver to the Disclosing Party all tangible Confidential Information, and (ii) not retain any copies, extracts or other reproductions in whole or in part of such tangible Confidential Information (other than any Confidential Information contained on back-up media retained in the ordinary course of business, which shall not be referenced after such time). Upon request, the Receiving Party shall confirm for the Disclosing Party in writing that all such material has been so delivered or destroyed. Notwithstanding the foregoing, (a) the Receiving Party and each of its Representatives may each retain one copy of the Confidential Information to the extent required to comply with legal or regulatory requirements, bona fide document retention policies or to demonstrate compliance with this Agreement and (b) neither the Receiving Party nor its Representatives shall be required to return or destroy any electronic copy of Confidential Information created pursuant to standard electronic backup and archival systems which are not readily accessible.

 

 

Notwithstanding the delivery or destruction of the materials required by this paragraph, unless otherwise provided for in this Agreement, all duties and obligations existing under this Agreement (including with respect to any oral Confidential Information) shall remain in full force and effect.

 

8.

All Confidential Information is provided “as is” and without any warranty, express, implied or otherwise, regarding such Confidential Information’s completeness, accuracy or performance. The Parties acknowledge that neither of the Parties nor any of their respective Representatives make any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information, and hereby waive any liability that any such person may otherwise have relating to the Confidential Information or for any errors therein or omissions therefrom. Each Party acknowledges that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it shall be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with respect to the relationship between the Parties, when, as and if executed, and subject to such limitations and restrictions as may be contained therein.

 

9.

Each Party hereby acknowledges that it is aware, and that each Party will advise its Representatives who receive any Confidential Information, that the Confidential Information may contain material, non-public information about the other Party, and that the United States securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

 

10.

In consideration of the Confidential Information of each Party being furnished to the other Party hereunder, each Party, for a period of one (1) year from the Effective Date, without obtaining the prior written consent of the other Party, shall not, nor shall any of such other Party’s Affiliates or Representatives who are provided with Confidential Information, directly or indirectly solicit for employment any employee of the other Party who became known to the hiring Party as a result of the discussions relating to the Purpose, or directly or indirectly induce any such employee of the other Party to terminate such employee’s employment with the other Party. The foregoing restriction does not apply to hiring an employee who responds to a general solicitation, not specifically directed at the other Party, in the public media of a job opening of either Party.

 

11.

In consideration of the Confidential Information of each Party being furnished to the other Party hereunder, for a period of one (1) year from the Effective Date, neither Party nor any of such Party’s Affiliates, nor any of such Party’s Representatives acting on its behalf or at its direction who are provided with Confidential Information, will, or will assist or knowingly encourage any third party to, in any manner, directly or indirectly, acting alone or in concert with others, unless in any such case without prior written consent of the other Party:

 

(a)               make any public announcement with respect to, or submit any proposal for, a business combination transaction between the other Party or any of the other Party’s security holders and it (and/or any of its Affiliates) (including, without limitation, a merger, consolidation, reorganization, acquisition, disposition or exclusive license of all or substantially all of the assets or stock of the other Party or any of its Affiliates), whether or not any third parties are also involved, directly or indirectly, in such proposal or transaction, unless such proposal is directed and disclosed confidentially to the other Party’s management and its designated Representatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Party, the other Party has given its advance written consent to the involvement of such additional or other parties;

 

 

(b)               other than pursuant to a prior written agreement with the other Party, purchase, acquire or own, or offer to agree to purchase, acquire or own, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to acquire any voting securities of the other Party, except that the other Party and/or its Affiliates may, in the aggregate, own beneficially or of record, directly or indirectly, up to one percent (1%) of the outstanding voting securities of the other Party;

 

(c)               make or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in Regulation 14 under the Exchange Act) or become a participant in an election contest with respect to the other Party or seek to advise or influence any person with respect to the voting of any voting securities of the other Party;

 

(d)               execute any written consent in lieu of a meeting of holders of any class of securities of the other Party unless such written consent is solicited by the Board of Directors of the other Party;

 

(e)               initiate, propose or otherwise solicit shareholders for the approval of one or more shareholder proposals with respect to the other Party as described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;

 

(f)                acquire or affect the control of the other Party or directly or indirectly form, join or participate in or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to ownership of securities of the other Party, or to acquire or affect control of the other Party;

 

(g)               call or seek to have called any meeting of the shareholders of the other Party;

 

(h)               seek election to or seek to place a representative on the Board of Directors of the other Party, seek the removal of any member of the Board of Directors of the other Party or otherwise seek to control the Board of Directors of the other Party;

 

 

(i)                 request the other Party (or any of its officers, directors or Representatives), directly or indirectly, to amend or waive any provision of this Section 11 (including this clause (i));

 

(j)                 instigate, knowingly encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in any of the actions covered by clauses (a) through (h) of this Section 11, or render advice with respect to voting securities of the other Party; or

 

(k)               except to the extent required by law, make any public statement (or make available to any member of the news media any information) with respect to any of the matters covered by this Section 11, or with respect to the terms and conditions of, or any of the facts or discussions related to, this Agreement.

 

Notwithstanding the foregoing, a Party shall not be subject to any of the restrictions set forth in this Section 11 if: (x) the other Party shall have entered into, or publicly announced an agreement in principle or definitive agreement providing for (i) any direct or indirect acquisition or purchase of more than fifty percent (50%) of the voting securities of such other Party by any person or group; (ii) any direct or indirect purchase, acquisition or disposition of more than fifty percent (50%) of the consolidated assets of such other Party by any person or group; or (iii) any merger, consolidation, business combination, recapitalization or similar transaction involving such other Party pursuant to which, immediately following such transaction, any person (or the direct or indirect beneficial equityholders of such person) shall beneficially own more than fifty percent (50%) of the outstanding voting power of such other Party or of the surviving entity in such transaction; (y) any person or group shall have commenced an unsolicited tender offer or exchange offer that would result in any person or group beneficially owning (within the meaning of Section 13(d)(1) of the Exchange Act) more than fifty percent (50%) of the voting securities of such other Party and such other Party’s Board of Directors does not, within 10 business days from the date such tender or exchange offer is commenced, recommend that such other Party’s stockholders not tender their shares into such tender or exchange offer; or (z) the other Party otherwise shall have made a proposal which shall have become public to enter into any transaction described in the foregoing clause (x). If the restrictions set forth in this Section 11 cease to be applicable to a Party pursuant to the operation of the preceding sentence and such Party thereafter takes any action with respect to the other Party described in (a) through (k) of this Section 11, such other Party shall also cease to be subject to any of the restrictions set forth in this Section 11 and the Receiving Party’s obligations of non-use hereunder shall terminate with respect to the actions set forth in this Section 11 (for clarity, nothing in this sentence shall relieve either Party of its confidentiality obligations under this Agreement).

 

12.

Unless and until a definitive agreement between the Parties with respect to the Purpose has been executed, this Agreement shall not impose upon either Party any obligation to enter into any relationship or further agreement with the other Party. All Confidential Information of each Party shall remain the property of such Party. Nothing herein shall be construed as granting to the Receiving Party hereto, by implication, estoppel or otherwise, any right, title or interest in, or any license under, any intellectual property right or any of the Disclosing Party’s Confidential Information, other than as specifically set forth herein. Each Party is aware that the other Party is actively engaged in a similar business and acknowledges that this Agreement is not intended and will not be construed to preclude its engagement in business activity not involving use of Confidential Information (including, without limitation, competitive activities of the nature in which such Party is currently engaged and competitive activities in new product area in which it may become engaged in the future), provided, of course, the Confidential Information is not used in violation of the terms of this Agreement.

 

 

13.

No failure or delay by a Party or any of its Representatives in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right hereunder. The confidentiality, non-use and other protective provisions set forth in this Agreement are intended to be in addition to, and expressly do not supplant or supersede, any state, federal, contractual or other statutory or common laws that afford protection to trade secrets and/or other intellectual property. This Agreement shall not be construed as an election of any remedies and each Party retains all rights available to it, whether pursuant to this Agreement, pursuant to such statutory and/or common laws, or otherwise.

 

14.

This Agreement constitutes the entire agreement of the Parties regarding the disclosure and use of Confidential Information covered under this Agreement, and shall not be modified by previous agreements between the Parties. In addition, this Agreement shall not amend, diminish, supplement or otherwise affect any previous agreements, if any, between the Parties with respect to the disclosure or use of information covered by such prior agreements. This Agreement may be changed only by a writing signed by both Parties and shall be binding and inure to the benefit of the Parties’ respective successors and assigns.

 

15.

In the event that any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any provision of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent permitted by law.

 

16.

All notices required or permitted under this Agreement must be in writing and must be given by directing the notice to the address for the Party set forth in this Agreement or at such other address as a Party may specify in writing under this procedure. Notices to Collegium shall be marked “Attention: General Counsel.” Notices to BDSI shall be marked “Attention: General Counsel.”

 

17.

This Agreement may be executed in more than one counterpart and signature pages may be exchanged by facsimile or pdf. For purposes of this Agreement, a signed copy shall have the same force and effect as an original signed agreement.

 

18.

This Agreement shall be governed by the laws of the State of Delaware without giving effect to the principles of conflicts of law thereof. Each Party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement exclusively in the courts of the Chancery courts in the State of Delaware and the Federal courts of the United States of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts.

 

 

Acknowledged and agreed:

 

COLLEGIUM PHARMACEUTICAL, INC.			BIODELIVERY SCIENCES INTERNATIONAL, INC.
By:	/s/ Jim Vollins		By:	/s/ Shirley Kuhlmann
Name:	Jim Vollins		Name:	Shirley Kuhlmann
Title:	EVP, General Counsel		Title:	General Counsel

 

 

 

Exhibit (d)(5)

 

 

 

CONFIDENTIAL

 

February 4, 2022

 

BioDelivery Sciences International, Inc. 

4131 ParkLake Avenue, Suite 225 

Raleigh, NC 27612 United States

 

Attn: Mr. Jeffrey A. Bailey, Chief Executive Officer

 

Dear Jeff,

 

On behalf of Collegium Pharmaceutical, Inc. (“Collegium”), we would like to thank you again for the opportunity to explore a potential transaction with BioDelivery Sciences International, Inc. (“BDSI”) to acquire 100% of the issued and outstanding share capital of BDSI (the “Proposed Transaction”).

 

In consideration for the time, expense and efforts Collegium has expended, and will expend, in conducting its due diligence review of BDSI and preparing for and negotiating the definitive documentation with respect to the Proposed Transaction, until the earliest to occur of: (i) 11:59 p.m. (Eastern Time) on February 7, 2022, which shall automatically extend to 11:59 p.m. (Eastern Time) on February 14, 2022 provided that a revised draft Commitment Letter from Collegium’s lender is received by BDSI, in a form reasonably satisfactory to BDSI, by 11:59 p.m. (Eastern Time) on February 7, 2022, (ii) the execution of an acquisition agreement between Collegium and BDSI and (iii) the time at which Collegium reduces, or proposes a reduction in, the purchase price of $5.60 per share proposed by Collegium (the “Exclusivity Period”), BDSI shall not, and shall not authorize its senior-level employees, shareholders, officers, directors, agents, advisors or controlled affiliates (collectively, “Representatives”) to, and shall direct (and shall use reasonable best efforts to cause) its Representatives not to, directly or indirectly, (a) solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Competing Proposal (as defined below), (b) engage in, continue or otherwise participate in any discussions (except to notify a Person (as defined below) that makes any inquiry or offer with respect to a Competing Proposal of the existence of the provisions of this letter agreement) or negotiations regarding, or furnish to any other Person any non-public information in connection with or for the purpose of soliciting, knowingly encouraging or facilitating, any proposal or offer that constitutes, or could reasonably be expected to lead to, a Competing Proposal, (c) enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to a Competing Proposal or any proposal or offer that constitutes, or could reasonably be expected to lead to, a Competing Proposal, (d) waive or release any Person from, fail to use reasonable best efforts to enforce any standstill agreement or any standstill provisions of any contract entered into in respect of a potential Competing Proposal, or (e) approve, authorize or agree to do any of the foregoing. BDSI and its Representatives shall terminate all discussions or negotiations with any Person with respect to a Competing Proposal or potential Competing Proposal that existed on or prior to the date hereof.

 

100 Technology Center Drive, Suite 300 l Stoughton, MA 02072 l collegiumpharma.com l (781) 713-3699

 

 

 

 

“Competing Proposal” means any indication of interest, proposal or offer from any individual or any corporation, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other enterprise, association, organization or entity, other than Collegium (each a “Person”) relating to, in a single transaction or series of related transactions, any (a) acquisition or joint venture, (including any distribution or revenue-sharing arrangement) with respect to more than 15% of the assets of BDSI or any of its subsidiaries, (b) issuance or acquisition representing 15% of more of the voting equity securities of BDSI, (c) recapitalization, tender offer or exchange offer with respect to 15% of more of the voting equity securities of BDSI, or (d) merger, consolidation, amalgamation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving any sale of more than 15% of the assets of BDSI or representing 15% of more of the voting equity securities of BDSI, in each case other than the Proposed Transaction (each of the foregoing, a “Competing Transaction”).

 

BDSI shall promptly advise Collegium of the receipt by BDSI or any of its Representatives of any Competing Proposal (including the terms thereof and the name of the Person making or delivering such Competing Proposal and of any Person on whose behalf such Competing Proposal is made or delivered) during the Exclusivity Period.

 

The Exclusivity Period shall be automatically extended for up to two (2) additional one (1) business day periods so long as the parties are working in good faith toward the execution of the definitive purchase agreement for the Proposed Transaction. Following such extensions, the Exclusivity Period may be extended by mutual agreement of the parties.

 

The existence and contents of this letter agreement and the parties’ discussions regarding the Proposed Transaction shall constitute confidential information under the confidentiality provisions of the Confidentiality Agreement, dated as of December 29, 2021, by and between BDSI and Collegium.

 

This letter agreement may be executed in counterparts and (i) shall be governed by the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable provisions of conflicts of law thereof, and (ii) may only be amended in a writing executed by each of the parties hereto. Except as set forth in this letter agreement, there is no contract or agreement between BDSI and Collegium with respect to a Proposed Transaction until definitive documentation is complete and executed. If any provision of this letter agreement is determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement shall not in any way be affected or impaired thereby. It is agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by BDSI and that Collegium shall therefore be entitled to equitable relief, including an injunction or specific performance, as a remedy for any such breach, without the posting of a bond or any other security. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity.

 

100 Technology Center Drive, Suite 300 l Stoughton, MA 02072 l collegiumpharma.com l (781) 713-3699

 

 

 

 

If the foregoing is acceptable to BDSI, please sign and date this letter agreement on the appropriate space below and return an executed copy to Collegium’s attention, whereupon the binding provisions of this letter as noted above shall become a binding agreement between the parties hereto.

 

Very truly yours,
COLLEGIUM PHARMACEUTICAL, INC.
By:	/s/ Shirley Kuhlmann
Name: Shirley Kuhlmann
Title: Executive Vice President & General Counsel
AGREED AND ACKNOWLEDGED as of the date first mentioned above:
BioDelivery Sciences International, Inc.
By:	/s/ Jeffrey A. Bailey
Name: Jeffrey A. Bailey
Title: Chief Executive Officer

 

100 Technology Center Drive, Suite 300 l Stoughton, MA 02072 l collegiumpharma.com l (781) 713-3699

 

 

Exhibit 107

 

Calculation of Filing Fee Tables

Schedule TO

(Rule 14d-100)

BIODELIVERY SCIENCES INTERNATIONAL, INC.

(Name of Subject Company (Issuer))

COLLEGIUM PHARMACEUTICAL, INC.

(Names of Filing Persons (Offerors))

Table 1-Transaction Valuation

 

		Transaction Valuation*				Fee rate				Amount of Filing Fee
Fees to Be Paid		$	1,196,312,079.36				.0000927			$	110,898.13
Fees Previously Paid			0								0
Total Transaction Valuation		$	1,196,312,079.36
Total Fees Due for Filing										$	110,898.13
Total Fees Previously Paid											0
Total Fee Offsets											0
Net Fee Due										$	110,898.13

 

*Estimated for purposes of calculating the amount of the filing fee only. The transaction valuation was calculated by adding the sum of (i) 102,084,213 shares of common stock, par value $0.001 per share (“Shares”), issued and outstanding of BioDelivery Sciences International, Inc., a Delaware corporation (“BDSI”), multiplied by the offer price of $5.60 per Share, (ii) 1,223,900 Shares issuable pursuant to outstanding time-vested restricted stock units multiplied by the offer price of $5.60 per Share, (iii) 2,051,033 Shares issuable pursuant to outstanding warrants with an exercise price less than $5.60, multiplied by $3.04, which is $5.60 minus the weighted average price for such warrants of $2.56, and (iv) the net offer price for options to purchase 12,268,229 Shares with an exercise price less than $5.60 per Share (which is calculated by multiplying the number of Shares underlying such in-the-money stock options by an amount equal to $5.60 per Share minus the weighted average exercise price of $3.84 per Share). The foregoing share figures have been provided by BDSI are as of February 17, 2022, the most recent practicable date.