Halozyme Therapeutics, Inc SC TO-T/A, filed May 2, 2022

Halozyme Therapeutics, Inc. (HALO)

SC TO-T/A 2022-05-02

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Exhibit No.		Description

(b)(2)		Amended and Restated Commitment Letter, dated as of April 28, 2022, by and among Halozyme Therapeutics, Inc., BofA Securities, Inc., Bank of America N.A, Wells Fargo Bank, National Association and Wells Fargo Securities, LLC.


Atlas Merger Sub, Inc.

By:		/s/ Nicole LaBrosse
		Name: Nicole LaBrosse
		Title: Treasurer


Halozyme Therapeutics, Inc.

By:		/s/ Nicole LaBrosse
		Name: Nicole LaBrosse
		Title: Senior Vice President, Chief Financial Officer


Exhibit No.		Description

(a)(1)(A)		Offer to Purchase, dated April 26, 2022.*

(a)(1)(B)		Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9).*

(a)(1)(C)		Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

(a)(1)(D)		Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

(a)(1)(E)		Summary Advertisement, as published in The Wall Street Journal, dated April 26, 2022.*

(a)(5)(A)		Email to employees of Antares Pharma, Inc., dated April 13, 2022 (incorporated herein by reference to Exhibit (a)(5)(A) to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(B)		Email to employees of Halozyme Therapeutics, Inc., dated April 13, 2022 (incorporated herein by reference to Exhibit (a)(5)(B) to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(C)		Halozyme Therapeutics, Inc. employee FAQs, dated April 13, 2022 (incorporated herein by reference to Exhibit (a)(5)(C) to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(D)		Letter to partners of Halozyme Therapeutics, Inc., dated April 13, 2022 (incorporated herein by reference to Exhibit (a)(5)(D) to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(E)		Halozyme Therapeutics, Inc. infographic, published on April 13, 2022 (incorporated herein by reference to Exhibit (a)(5)(E) to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(F)		Social media posts (Twitter and LinkedIn) of Halozyme Therapeutics, Inc., dated April 13, 2022 (incorporated herein by reference to Exhibit (a)(5)(F) to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(G)		Transcript of conference call of Halozyme Therapeutics, Inc., held on April 13, 2022 (incorporated herein by reference to Exhibit (a)(5)(G) to the Schedule TO-C filed by Parent with the SEC on April 14, 2022).

(a)(5)(H)		Joint press release of Halozyme Therapeutics, Inc. and Antares Pharma, Inc., dated as of April 13, 2022 (incorporated herein by reference to Exhibit 99.1 to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(I)		Investor Presentation of Halozyme Therapeutics, Inc., dated as of April 13, 2022 (incorporated herein by reference to Exhibit 99.2 to the Schedule TO-C filed by Parent with the SEC on April 13, 2022).

(a)(5)(J)		Press Release of Halozyme Therapeutics, Inc., dated as of April 26, 2022.*

(b)(1)		Commitment Letter, dated as of April 12, 2022, by and among Halozyme Therapeutics, Inc., BofA Securities, Inc. and Bank of America N.A.*

(b)(2)		Amended and Restated Commitment Letter, dated as of April 28, 2022, by and among Halozyme Therapeutics, Inc., BofA Securities, Inc., Bank of America N.A, Wells Fargo Bank, National Association and Wells Fargo Securities, LLC.**

(d)(1)		Agreement and Plan of Merger, dated as of April 12, 2022, by and among Halozyme Therapeutics, Inc., Atlas Merger Sub, Inc. and Antares Pharma, Inc. (incorporated herein by reference to Exhibit 2.1 to Halozyme Therapeutics, Inc.’s Form 8-K (File No. 001-32335), filed with the SEC on April 13, 2022).

(d)(2)		Confidentiality Agreement, dated as of February 18, 2022, by and between Halozyme Therapeutics, Inc. and Antares Pharma, Inc.*

(d)(3)		Exclusivity Agreement, dated as of March 17, 2022, by and between Halozyme Therapeutics, Inc. and Antares Pharma, Inc.*

(g)		Not applicable.

(h)		Not applicable.

107		Fee Filing Table.**


Very truly yours,

BofA SECURITIES, INC.

By:		/s/ Matthew Curtin
		Name: Matthew Curtin
		Title: Managing Director

BANK OF AMERICA, N.A.

By:		/s/ Matthew Curtin
		Name: Matthew Curtin
		Title: Managing Director


WELLS FARGO BANK, NATIONAL ASSOCIATION

By:		/s/ Lindsey Stuckey
		Name: Lindsey Stuckey
		Title: Director

WELLS FARGO SECURITIES, LLC

By:		/s/ Dan Morris
		Name: Dan Morris
		Title: Managing Director


HALOZYME THERAPEUTICS, INC.,

by		/s/ Nicole LaBrosse
		Name: Nicole LaBrosse
		Title: SVP, CFO


Borrower:		Halozyme Therapeutics, Inc., a Delaware corporation.

Facility:		A $375.0 million term loan facility (the “Term Loan Facility”).

Joint Lead Arrangers and Joint Bookrunners:		BofA Securities and Wells Fargo Securities (in such capacities, the “Lead Arrangers”).

Administrative and Collateral Agent:		Bank of America (in such capacities, the “Administrative Agent” and the “Collateral Agent”).

Lenders:		A syndicate of lenders, including Bank of America, Wells Fargo Bank and excluding Disqualified Lenders (collectively, the “Lenders”).

Availability:		The Term Loan Facility will be available in a single drawing on the Closing Date. Amounts borrowed under the Term Loan Facility that are repaid or prepaid may not be reborrowed.

Guarantors:		Same as under the Existing Credit Agreement (as defined below), as well as Atlas and each of its subsidiaries (other than a CFC (as defined in the Existing Credit Agreement) or any Subsidiary that is held directly or indirectly by a CFC).

Security:		Same as under the Existing Credit Agreement and shall also include the assets of Atlas and each of its subsidiaries that become Loan Parties on substantially the same basis as the collateral of the existing Loan Parties.

Unrestricted Subsidiaries:		Same as under the Existing Credit Agreement (as defined below).

Use of Proceeds:		The proceeds of the Term Loan Facility will be used on the Closing Date, together with cash on hand, to finance the Transactions.

Maturity Date and Amortization:		The Term Loan Facility will mature on November 30, 2026 (the “Maturity Date”) and will amortize on a quarterly basis in arrears (beginning with the first full fiscal quarter following the Closing Date) at a rate of 2.50% per annum during the first year following the Closing Date, 5.00% per annum during the second year following the Closing Date, 5.00% per annum during the third year following the Closing Date, 7.50% per annum during the fourth year following the Closing Date and 10.00% per annum during the fifth year following the Closing Date, with the balance of the principal amount of the Term Loan Facility to be paid on the Maturity Date.


		vi. any Incremental Term Facility shall share not greater than ratably in any mandatory prepayments of the Term Loan Facility and such Incremental Term Facility; vii. any Incremental Term Facility shall otherwise be on terms (including pricing and fees) and pursuant to documentation to be determined by the Borrower and the Additional Incremental Lenders (as defined below) providing the Incremental Term Facility; provided that to the extent such terms (other than pricing and fees) and documentation are not consistent with the Term Loan Facility (except to the extent permitted above in clauses (i)-(vi)), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Incremental Term Facility, no consent shall be required from Lenders under the Term Loan Facility to the extent that such term is (a) also added for the benefit of the Term Loan Facility or (b) is only applicable after the maturity of the Term Loan Facility); viii. the Borrower shall be in compliance with the financial covenants on a pro forma basis to the extent then applicable (provided that, in the case of Incremental Facilities used to finance a Limited Condition Acquisition (to be defined in a manner to be agreed), this clause (viii) and compliance with any representations, warranties, defaults or events of default may be tested at the Borrower’s election at the time of the execution of the acquisition agreement related to such Limited Condition Acquisition); and i. any Incremental Term Facility that is secured shall be subject to intercreditor terms reasonably agreed between the Borrower and the Administrative Agent.

		The Borrower may seek commitments in respect of the Incremental Facilities from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other lenders (other than Disqualified Lenders) who will become Lenders in connection therewith (“Additional Incremental Lenders”).

Hedging Agreements:		Same as under the Existing Credit Agreement.

Interest Rates and Fees:		As set forth on Annex I hereto.

Optional Commitment Reduction and Prepayment:		The Borrower will be permitted, upon written notice, to terminate in whole, or from time to time reduce in part, the commitments of the Lenders under the Term Loan Facility without penalty, in minimum amounts equal to the lesser of $5,000,000 and the commitment of such Lender outstanding and in integral multiples of $1,000,000 over $5,000,000.



		The Borrower will be permitted, upon same day notice for Base Rate loans and at least three business days’ notice for Term SOFR loans, to prepay loans under the Term Loan Facility in whole or in part without penalty or premium, in minimum amounts equal to, in the case of Term SOFR loans, the lesser of $5,000,000 and the amount outstanding and in integral multiples of $1,000,000 over $5,000,000 and, in the case of Base Rate loans, the lesser of $500,000 and the amount outstanding and in integral multiples of $100,000 over $500,000.

Mandatory Prepayment:		After the Closing Date, the following amounts will be applied to prepay loans under the Term Loan Facility, in each case consistent with the Credit Agreement Documentation Principles: (a) 100% of the net cash proceeds of any incurrence of Indebtedness after the Closing Date (other than indebtedness permitted under the definitive documents for the Term Loan Facility (other than refinancing debt)) by the Borrower or any of its restricted subsidiaries; and (b) 100% of the net cash proceeds received by the Borrower or any of its subsidiaries of any non-ordinary course asset sales of assets by the Borrower or any of its restricted subsidiaries, subject to (i) a de minimis threshold in an amount to be agreed and (ii) rights to reinvest within 12 months of receipt (or, if the Borrower or the applicable Subsidiary has entered into a binding commitment with respect to such reinvestment within such 12 month period, within 18 months of receipt). Any Lender may elect not to accept its pro rata portion of any mandatory prepayment.

Documentation:		The Term Loan Facility will be documented under a credit agreement and related agreements and documentation to be based on that certain Credit Agreement dated as of December 23, 2021, by and among the Company, Halozyme, Inc., a California corporation, each lender from time to time party thereto, and Bank of America, N.A., as administrative agent, a swing line lender and an L/C issuer (the “Existing Credit Agreement”), as modified to reflect the proposed Transactions and the terms and conditions set forth herein, in the annexes hereto and in the Commitment Letter (as modified by the “flex” provisions of the Fee Letter, if applicable); provided that (a) such changes shall be made thereto as are necessary or reasonably appropriate to reflect the terms set forth in this Exhibit B and in the Commitment Letter to which this Exhibit B is attached, (b) updates due to accounting changes and changes in law and other modifications as may be mutually agreed shall be included and (c) modifications to reflect reasonable operational and administrative agency requirements of the Administrative Agent (the “Credit Agreement Documentation Principles”).

Representations and Warranties:		Same as under the Existing Credit Agreement.

Conditions Precedent to Funding:		The borrowings and other extensions of credit under the Term Loan Facility on the Closing Date will be subject solely to the Funding Conditions.



Affirmative Covenants:		Same as under the Existing Credit Agreement, and an additional covenant to move the principal deposit accounts of the Loan Parties to Bank of America (or an affiliate thereof) within six (6) months of the Closing Date.

Negative Covenants:		Same as under the Negative Covenants set forth in the Existing Credit Agreement, except: • modifications consistent with those set forth in Exhibit A; • modify certain covenants to permit the Transaction; and • modify the restricted payments covenant to: • replace the basket in Section 7.06(e) with (i) a general basket for restricted payments in an amount not exceed in the aggregate the greater of $85.0 million and 25% of Consolidated EBITDA, subject to no default or event of default and (ii) a general basket for share repurchases in an amount not exceed in the aggregate the greater of $85.0 million and 25% of Consolidated EBITDA, subject to no default or event of default; • add a basket for unlimited restricted payments subject to (i) a Consolidated Total Net Leverage Ratio of not greater than 2.75:1.00, calculated on a pro forma basis giving effect to such restricted payment and (ii) no default or event of default; and • add an “available amount” basket for restricted payments and investments based on 50.0% of cumulative Consolidated Net Income and other customary builders, subject to (i) pro forma compliance with the financial covenants referred to below and (ii) no default or event of default.

Financial Covenants:		Maximum Consolidated Net Leverage Ratio: 4.75:1.00, subject to (i) a 25 basis point reduction on each of the first, second and third anniversaries of the Closing Date and (ii) in the event of a Material Acquisition (to be defined in the definitive documentation), a 50 basis point increase for twelve (12) months commencing on the date of such Material Acquisition; provided the maximum Consolidated Net Leverage Ratio after giving effect to such increase shall at no time exceed 4.75:1.00. “Consolidated Net Leverage Ratio” shall be defined as set forth in the Existing Credit Agreement except that all cash and cash equivalents may be netted for purposes of such definition up to a maximum amount of $250.0 million. Minimum Consolidated Interest Coverage Ratio (as defined in the Existing Credit Agreement): 3.00:1.00.

Events of Default:		Same as under the Existing Credit Agreement.



Voting Rights:		Same as under the Existing Credit Agreement.

Assignments and Participations:		Same as under the Existing Credit Agreement (as modified to reflect the term loan nature of the facility).

Expenses and Indemnification:		Same as under the Existing Credit Agreement (as defined below).

Governing Law and Jurisdiction:		Same as under the Existing Credit Agreement (as defined below); provided that (a) the accuracy of any Transaction Agreement Representations and whether as a result of a breach thereof the Borrower (or any of the Borrower’s subsidiaries) has the right under the Transaction Agreement not to consummate the Acquisition as a result of such representations in the Transaction Agreement being inaccurate and (b) whether the Acquisition has been consummated in accordance with the Transaction Agreement, shall be governed by, and construed in accordance with the laws of the State of Delaware, 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 the Laws of any jurisdiction other than the State of Delaware.

Counsel to Joint Lead Arrangers and Administrative Agent:		Cahill Gordon & Reindel LLP



Interest Rates:		Interest will be payable on loans under the Term Loan Facility at the following rates per annum: (a) in the case of Term SOFR loans, Term SOFR plus the Applicable Margin per annum, and (b) in the case of Base Rate loans, the Base Rate plus the Applicable Margin per annum.

		As used herein: “Base Rate”means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, (c) the Secured Overnight Financing Rate published on such day by the SOFR Administrator on the Federal Reserve Bank of New York’s website (or any successor source) plus 1.00% and (d) 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. “Term SOFR” means a forward-looking term rate for SOFR, if any, identified by the SOFR Administrator as reflecting term-based quotations of SOFR that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion, plus the SOFR Adjustment. If the rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement. “Applicable Margin” shall mean a percentage per annum based on the applicable “Pricing Level” set forth in the below pricing grid (the “Pricing Grid”) and determined quarterly based on meeting a Consolidated Net Leverage Ratio.


		Applicable Margin
Pricing Level	Consolidated Net Leverage Ratio	SOFR Margin	Base Rate Margin
1	< 1.50:1.00	1.25%	0.25%
2	≥ 1.50:1.00 but < 2.50:1.00	1.50%	0.50%
3	≥ 2.50:1.00 but < 3.50:1.00	1.75%	0.75%
4	≥ 3.50:1.00 but < 4.00:1.00	2.00%	1.00%
5	≥ 4.00:1.00	2.25%	1.25%



		“Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding business day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement. “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York. “SOFR Adjustment” shall mean 0.10% (10 basis points).

		Term SOFR borrowings may be made for interest periods of 1, 3 or 6 months, as selected by the Borrower.



		Interest on Term SOFR loans and all fees will be payable in arrears on the basis of a 360-day year, calculated on the basis of the actual number of days elapsed. Interest on Base Rate loans will be payable in arrears on the basis of a 365-day year (or a 366-day year in a leap year) calculated on the basis of the actual number of days elapsed. Interest will be payable on Term SOFR loans on the last day of the applicable interest period (or at the end of each three months, in the case of interest periods longer than three months) and upon prepayment, and on Base Rate loans quarterly and upon prepayment. The Borrower may select interest periods of one, three or six months for Term SOFR loans, subject to availability. Interest on Term SOFR loans shall be payable at the end of the selected interest period, but no less frequently than every three months, and on the Maturity Date.

Default Rate:		With respect to overdue principal, the applicable interest rate plus 2.00% per annum and, with respect to any other overdue amount, the interest rate applicable to Base Rate loans under the Term Loan Facility plus 2.00% per annum.