DEFM14A 1 d320586ddefm14a.htm DEFM14A DEFM14A
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

(Amendment No.    )

 

 

Filed by the Registrant  ☒                             Filed by a Party other than the Registrant  ☐

Check the appropriate box:

 

  Preliminary Proxy Statement
  Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
  Definitive Proxy Statement
  Definitive Additional Materials
  Soliciting Material under §240.14a-12

GW PHARMACEUTICALS PLC

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

  No fee required.
  Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
  (1)  

Title of each class of securities to which transaction applies:

 

     

  (2)  

Aggregate number of securities to which transaction applies:

 

     

  (3)  

Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

 

     

  (4)  

Proposed maximum aggregate value of transaction:

 

     

  (5)  

Total fee paid:

 

     

  Fee paid previously with preliminary materials.
  Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
  (1)  

Amount Previously Paid:

 

     

  (2)  

Form, Schedule or Registration Statement No.:

 

     

  (3)  

Filing Party:

 

     

  (4)  

Date Filed:

 

     

 

 

 


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LOGO

GW Pharmaceuticals plc

(Incorporated and registered in England and Wales

with registered number 04160917)

Registered office: Sovereign House, Vision Park, Chivers Way, Histon, Cambridge CB24 9BZ,

United Kingdom

TRANSACTION PROPOSED—YOUR VOTE IS VERY IMPORTANT

March 15, 2021

Dear Fellow Shareholder:

As previously announced, on February 3, 2021, GW Pharmaceuticals plc (“GW”) entered into a transaction agreement (as it may be amended, the “Transaction Agreement”) with Jazz Pharmaceuticals Public Limited Company, a public limited company incorporated in the Republic of Ireland (“Jazz”), and Jazz Pharmaceuticals UK Holdings Limited, a private limited company incorporated in England and Wales and an indirect wholly owned subsidiary of Jazz (“Bidco”), pursuant to which Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee (as defined below)) will acquire the entire issued and to be issued share capital of GW (the “Transaction”) by means of a court-sanctioned scheme of arrangement (the “Scheme of Arrangement”) under Part 26 of the UK Companies Act 2006.

We cordially invite all holders of GW ordinary shares to attend two meetings of shareholders of GW. The first meeting (the “Court Meeting”) will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom on April 23, 2021 at 2:00 p.m. (London time). The second meeting (the “General Meeting” and, together with the Court Meeting, the “Shareholder Meetings”) will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom on April 23, 2021 at 2:15 p.m. (London time) (or as soon thereafter as the Court Meeting shall have been concluded or adjourned).

At the Court Meeting, GW shareholders will be asked to consider and vote on the Scheme of Arrangement. At the General Meeting, GW shareholders will be asked to consider and vote on (1) a proposal (i) authorizing the Board of Directors of GW (the “GW Board”) to take all action necessary or appropriate for carrying the Scheme of Arrangement into effect and (ii) making certain amendments to the articles of association of GW in order to facilitate the Transaction and (2) a non-binding advisory proposal to approve certain compensation arrangements for GW’s named executive officers.

Transaction Overview

If the Transaction is completed:

 

   

all ordinary shares, par value £0.001 per share, of GW (“GW ordinary shares”) will be acquired by Bidco (and/or, at Bidco’s election, Jazz and/or any company falling within Section 67(6) and Section 93(3) of the UK Finance Act 1986 that Bidco appoints in order to act as transferee of the GW ordinary shares underlying the GW ADSs (as defined below) pursuant to the Scheme of Arrangement (the “DR Nominee”));

 

   

holders of GW ordinary shares as of the record time for the Scheme of Arrangement will, on the terms set out in the Scheme of Arrangement, have the right to receive for each GW ordinary share held by them at such time an amount equal to $16.6623 in cash (the “cash consideration”) plus an amount of Jazz ordinary shares, nominal value $0.0001 per share (“Jazz ordinary shares”), equal to the exchange ratio (as defined below) (the “share deliverable” and, together with the cash consideration, the “scheme deliverables”); and


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accordingly, holders of American Depositary Shares of GW (“GW ADSs”) as of the time that the Scheme of Arrangement becomes effective will have the right to receive for each GW ADS an amount equal to $200 in cash (less (i) a $0.05 per GW ADS cancellation fee, (ii) a $0.05 per GW ADS distribution fee for the distribution of the ADS deliverables (as defined below), (iii) any other fees and expenses payable by such holders pursuant to the terms of the deposit agreement, dated as of May 7, 2013 (the “Deposit Agreement”), by and among GW, Citibank, N.A., as depositary (the “Depositary”), and all holders and beneficial owners of GW ADSs issued thereunder and (iv) applicable withholding taxes) (the “per ADS cash consideration”) plus an amount of Jazz ordinary shares equal to 12 times the share deliverable (the “per ADS share deliverable” and, together with the per ADS cash consideration, the “ADS deliverables”).

The “exchange ratio” will be determined as follows:

 

   

if the Jazz average share price (which is defined as the volume weighted average sales price of the Jazz ordinary shares for the consecutive period of 15 trading days beginning at 9:30 a.m. New York time on the 18th trading day immediately preceding the date on which the Scheme of Arrangement becomes effective and concluding at 4:00 p.m. New York time on the fourth trading day immediately preceding such date, as calculated by Bloomberg L.P.) is greater than $139.72 but less than $170.76, the exchange ratio will be equal to the quotient obtained by dividing (x) $1.6623 by (y) the Jazz average share price, rounded to the nearest millionth of a share (corresponding to a per ADS share deliverable equal to an amount of Jazz ordinary shares equal to the quotient obtained by dividing (x) $20.00 by (y) the Jazz average share price);

 

   

if the Jazz average share price is equal to or less than $139.72, the exchange ratio will be 0.011929 (corresponding to a per ADS share deliverable of 0.143148 Jazz ordinary shares); and

 

   

if the Jazz average share price is equal to or greater than $170.76, the exchange ratio will be 0.009760 (corresponding to a per ADS share deliverable of 0.117120 Jazz ordinary shares).

Accordingly, the actual number of Jazz ordinary shares and the value of Jazz ordinary shares delivered to holders of GW ordinary shares (and, in consequence, to holders of GW ADSs) will depend on the Jazz average share price, and you will not be able to ascertain the precise value of the stock component of the scheme deliverables or ADS deliverables, as applicable, at the time you vote at the Shareholder Meetings. Jazz ordinary shares are traded on the NASDAQ Global Select Market under the trading symbol “JAZZ” and we encourage you to obtain current market quotations for the Jazz ordinary shares, given that part of the scheme deliverables and ADS deliverables are made up of Jazz ordinary shares.

The cash consideration is denominated in US dollars. However, a currency conversion facility is being made available to registered holders of GW ordinary shares (other than the Depositary) pursuant to which they will be able to elect (subject to the terms and conditions of the facility) to receive the cash consideration in British pounds at the average market exchange rate (which is calculated by dividing the total amount of US dollars converted by Bidco pursuant to the currency conversion facility by the total amount of British pounds received by Bidco pursuant to such currency conversion facility less any applicable and properly incurred transaction, foreign exchange and dealing costs or commissions) obtained by Bidco through one or more market transactions over one or more business days following the Scheme Record Time (as defined in the Scheme of Arrangement) before the relevant payment date. No currency conversion facility will be made available to holders of GW ADSs. See the sections entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” and “Notes for Making Currency Elections” beginning on pages 33 and 165, respectively, of the accompanying proxy statement for further information.

COVID-19 Restrictions

At the time of mailing of this letter, the UK Government has prohibited large public gatherings, except in certain limited circumstances. In light of these measures, together with the uncertainty as to any additional and/or alternative measures that may be put in place by the UK Government, and in order to protect the health and safety of the GW shareholders and GW directors, officers and employees, GW shareholders will not be permitted to attend the Shareholder Meetings in person, except for the Chair of the Shareholder Meetings and anyone else


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nominated by the Chair of the Shareholder Meetings. However, holders of GW ordinary shares will be able to attend, submit questions and vote at each Shareholder Meeting remotely via the Virtual Meeting Platform (as defined in the notices that follow), further details of which are set out in the accompanying proxy statement. GW ordinary shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW ordinary shareholders to be seen and heard through an audio visual link during the course of the Shareholder Meetings if they would prefer to do so. We would, however, nonetheless encourage all GW ordinary shareholders to vote by proxy as soon as possible, either through CREST or by returning the accompanying forms of proxy, even if they intend to attend the Shareholder Meetings remotely via the Virtual Meeting Platform. We encourage holders of GW ADSs to submit a voting instruction card for each Shareholder Meeting to the Depositary as soon as possible.

Voting

It is important that holders of GW ordinary shares vote at both of the Shareholder Meetings, and that holders of GW ADSs provide voting instructions to the Depositary to vote at both of the Shareholder Meetings on their behalf.

Holders of GW ordinary shares are encouraged to submit a form of proxy (by post, online or electronically through CREST) for each of the Court Meeting and the General Meeting as soon as possible. Holders of GW ordinary shares who hold their GW ordinary shares indirectly through a broker, bank, trust company or other nominee must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a holder of GW ordinary shares to vote at the Shareholder Meetings. If this applies to you, we encourage you to consult your broker, bank, trust company or other nominee as soon as possible.

If you hold GW ADSs, you will not be able to attend the Shareholder Meetings (remotely or otherwise) or submit a form of proxy. However, holders of GW ADSs who hold their GW ADSs directly (i.e. by having GW ADSs registered in their names on the GW ADS register maintained by the Depositary) on March 10, 2021 at 5:00 p.m. (New York time) will be sent ADS voting instruction cards and will have the right to instruct the Depositary how to vote the GW ordinary shares underlying their GW ADSs with respect to the resolutions to be proposed at the Shareholder Meetings, subject to and in accordance with the terms of the Deposit Agreement. Holders of GW ADSs are encouraged to timely submit voting instructions to the Depositary for each of the Court Meeting and the General Meeting as soon as possible. Holders of GW ADSs who hold their GW ADSs indirectly through a broker, bank, trust company or other nominee must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a GW ADS holder to issue voting instructions to the Depositary. If this applies to you, we encourage you to consult your broker, bank, trust company or other nominee as soon as possible.

For specific instructions on voting GW ordinary shares and GW ADSs, please refer to the accompanying proxy statement and forms of proxy or ADS voting instruction cards.

Recommendation of the GW Board

The GW Board considers the terms of the Transaction to be in the best interests of GW and its shareholders taken as a whole. Accordingly, the GW Board unanimously recommends that GW shareholders vote:

 

   

FOR” the approval of the Scheme of Arrangement at the Court Meeting; and

 

   

FOR” the approval of both of the resolutions at the General Meeting.

The GW Board made its determination after evaluating the Transaction in consultation with GW’s management and legal and financial advisors, and after considering a number of factors.

In considering the recommendation of the GW Board, you should be aware that directors and executive officers of GW may have certain interests in the Transaction that may be different from, or in addition to, the interests of


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GW shareholders generally. See the sections entitled “The General Meeting—Proposal 2—Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements” and “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on pages 51 and 87, respectively, of the accompanying proxy statement for further information regarding these interests.

We urge you to read the accompanying proxy statement, including any documents incorporated by reference therein and the Annexes thereto, carefully and in their entirety. In particular, we urge you to read carefully the section entitled “Risk Factors” beginning on page 28 of the accompanying proxy statement for risks relating to the Transaction and the combined company following the Transaction.

If you have any questions regarding the accompanying proxy statement, including any questions on how to vote:

 

   

if you hold GW ordinary shares, please contact GW’s registrar, Link Group, or GW’s proxy solicitor, D.F. King, at the contact information below:

Link Group

Telephone (call charges apply): +44 (0)371 277 1020 between 9:00 a.m.—5:30 p.m. (London time)

D.F. King

Email: gwpharma@dfkingltd.co.uk

Telephone (call charges apply): +44 207 920 9700, between 9:00 a.m.—5:30 p.m. (London time)

 

   

if you hold GW ADSs, please contact GW’s proxy solicitor, D.F. King, at the contact information below:

D.F. King

Email: gwpharma@dfkingltd.co.uk

Telephone (call charges apply): +44 207 920 9700, between 9:00 a.m.—5:30 p.m. (London time)

On behalf of the GW Board, thank you for your consideration and continued support.

Yours sincerely,

 

LOGO

 

 

 

LOGO

Dr. Geoffrey W. Guy     Justin Gover
Chairman, GW Pharmaceuticals plc     Chief Executive Officer, GW Pharmaceuticals plc

NONE OF THE U.S. SECURITIES AND EXCHANGE COMMISSION, ANY STATE SECURITIES COMMISSION OR THE UNITED KINGDOM FINANCIAL CONDUCT AUTHORITY HAS APPROVED OR DISAPPROVED THE TRANSACTION OR OTHER TRANSACTIONS DESCRIBED IN THE ACCOMPANYING PROXY STATEMENT OR THE SECURITIES TO BE ISSUED IN CONNECTION WITH THE TRANSACTION, NOR HAVE THEY DETERMINED IF THE ACCOMPANYING PROXY STATEMENT IS ACCURATE OR ADEQUATE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

For the avoidance of doubt, the accompanying proxy statement is not intended to be, and is not, a prospectus for the purposes of the Prospectus Rules made under Part 6 of the UK Financial Services and Markets Act 2000 (as set out in the UK Financial Conduct Authority’s Handbook).

The accompanying proxy statement is dated March 15, 2021 and is first being mailed or otherwise delivered to GW shareholders on or about March 17, 2021.


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THIS NOTICE APPLIES TO ORDINARY SHAREHOLDERS ONLY.

ADS HOLDERS SHOULD REFER TO THE SEPARATE NOTICE SENT BY

THE DEPOSITARY TO THEM WITH THE PROXY STATEMENT.

 

LOGO

GW Pharmaceuticals plc

(Incorporated and registered in England and Wales

with registered number 04160917)

NOTICE OF COURT MEETING

TO BE HELD ON APRIL 23, 2021

 

IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPANIES COURT (ChD)
   CR-2021-000281

IN THE MATTER OF GW PHARMACEUTICALS PLC

- and –

IN THE MATTER OF THE COMPANIES ACT 2006

NOTICE IS HEREBY GIVEN that, by an order dated March 15, 2021 made in the above matters, the High Court of Justice of England and Wales (the “Court”) has given permission for a meeting (the “Court Meeting”) to be convened of the holders of Scheme Shares as at the Voting Record Time (each such term having the meaning given to it in the Scheme, as defined below) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement proposed to be made pursuant to Part 26 of the Companies Act 2006 (the “Companies Act”) between GW Pharmaceuticals plc (“GW”) and the holders of the Scheme Shares (the “Scheme” or the “Scheme of Arrangement”) and that the Court Meeting will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom on April 23, 2021 at 2:00 p.m. (London time).

A copy of the Scheme and a copy of the explanatory statement required to be published pursuant to section 897 of the Companies Act are incorporated in the accompanying proxy statement.

Unless the context requires otherwise, any capitalized term used but not defined in this notice shall have the meaning given to such term in the accompanying proxy statement.

Voting on the resolution to approve the Scheme will be by poll, which shall be conducted as the Chair of the Court Meeting may determine.

Right to Appoint a Proxy; Procedure for Appointment

Scheme Shareholders are strongly encouraged to submit proxy appointments and instructions for the Court Meeting as soon as possible, using any of the methods (by post, online or electronically through CREST) set out in the below Notes to this notice. Scheme Shareholders are also strongly encouraged to appoint the Chair of the Court Meeting as their proxy. If any other person is appointed as proxy, he or she will not be permitted to attend the Court Meeting in person, but will be able to attend, submit questions and vote at the Court Meeting remotely


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via the Virtual Meeting Platform (as defined below). Scheme Shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables Scheme Shareholders to be seen and heard through an audio visual link during the course of the Shareholder Meetings if they would prefer to do so. Instructions for accessing the Virtual Meeting Platform and information on how to appoint a proxy are set out in the below Notes to this notice.

Voting Record Time

Entitlement to attend (remotely, via the Virtual Meeting Platform) and vote (remotely, via the Virtual Meeting Platform, or by proxy) at the Court Meeting or any adjournment thereof and the number of votes which may be cast at the Court Meeting will be determined by reference to the register of members of GW at the “Voting Record Time”, which is 6:00 p.m. (London time) on April 21, 2021 or, if the Court Meeting is adjourned, 6:00 p.m. (London time) on the date which is two business days before the date fixed for the adjourned meeting. Changes to the register of members of GW after the relevant time shall be disregarded in determining the rights of any person to attend (remotely, via the Virtual Meeting Platform) and vote (remotely, via the Virtual Meeting Platform, or by proxy) at the Court Meeting.

Joint Holders

In the case of joint holders of Scheme Shares, the vote of the senior who tenders a vote, whether remotely, via the Virtual Meeting Platform, or by proxy, will be accepted to the exclusion of the vote(s) of the other joint holder(s). For this purpose, seniority will be determined by the order in which the names stand in the register of members of GW in respect of the joint holding.

Corporate Representatives

As an alternative to appointing a proxy, any holder of Scheme Shares which is a corporation may appoint one or more corporate representatives who may exercise on its behalf all its powers as a member, provided that if two or more corporate representatives purport to vote in respect of the same shares, if they purport to exercise the power in the same way as each other, the power is treated as exercised in that way, and in other cases the power is treated as not exercised.

By the said order, the Court has appointed Dr. Geoffrey W. Guy, or failing him, James Noble, or failing him, any other GW director to act as Chair of the Court Meeting and has directed the Chair to report the result thereof to the Court.

YOUR VOTE IS IMPORTANT

Your vote at the Court Meeting is very important. You are strongly encouraged to submit proxy appointments and instructions for the Court Meeting as soon as possible.

Dated March 15, 2021

Slaughter and May

One Bunhill Row

London EC1Y 8YY

Solicitors for the Company


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Notes:

The following notes explain your general rights as a Scheme Shareholder and your right to remotely attend and vote at the Court Meeting or to appoint a proxy to vote on your behalf.

 

1.

COVID-19 RESTRICTIONS

At the time of publication of this notice, the UK Government has prohibited large public gatherings, except in certain limited circumstances. In light of these measures, together with the uncertainty as to any additional and/or alternative measures that may be put in place by the UK Government, and in order to protect the health and safety of GW’s shareholders and GW directors, officers and employees, Scheme Shareholders will not be permitted to attend the Court Meeting in person, except for the Chair of the Court Meeting and anyone else nominated by the Chair.

The COVID-19 situation is constantly evolving, and the UK Government may change current restrictions or implement further measures relating to the holding of shareholder meetings during the affected period. Any changes to the arrangements for the Court Meeting will be publicly communicated to Scheme Shareholders before the Court Meeting, including through GW’s Internet website http://www.gwpharm.com/acquisition-by-jazz-pharmaceuticals. The information contained on GW’s Internet website is not incorporated into, and does not form a part of, the accompanying proxy statement or any other report or document on file with or furnished to the U.S. Securities and Exchange Commission (the “SEC”).

 

2.

INSTRUCTIONS FOR ACCESSING THE VIRTUAL MEETING PLATFORM

Scheme Shareholders will be given the opportunity to remotely attend, submit questions and vote at the Court Meeting via a virtual meeting platform provided by Lumi AGM UK Limited (the “Virtual Meeting Platform”). Scheme Shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables Scheme Shareholders to be seen and heard through an audio visual link during the course of the Court Meeting if they would prefer to do so.

Scheme Shareholders can access the Virtual Meeting Platform using a web browser, on a PC, smartphone device or tablet. The web browser must be compatible with the latest browser versions of Chrome, Firefox, Internet Explorer 11 (Internet Explorer v. 10 and below are not supported), Edge and Safari. To remotely attend, submit questions and/or vote using this method, please go to https://web.lumiagm.com.

Alternatively, Scheme Shareholders can access the Virtual Meeting Platform by downloading the latest version of the Lumi AGM application (the “App”) onto their smartphone device or tablet. The App can be downloaded from the Google Play Store Market or the Apple® App Store by searching by the application name “Lumi AGM”. If you have previously downloaded the App, please ensure you are using the latest version by checking the status in the Google Play Store Market or the Apple® App Store. Please be aware that the App does not support Android 4.4 (or below), iOS 9 (or below) or any other operating system.

Once you have accessed https://web.lumiagm.com from your web browser, or downloaded the App, you will be asked to enter the Lumi Meeting ID which is 128-194-986. You will then be prompted to enter your unique Investor Code (“IVC”) and PIN. These can be found printed on the Attendance Card attached to the Forms of Proxy. Access to the Court Meeting via the website or App will be available from 1:00 p.m. (London time) on April 23, 2021, as further detailed below. If you are unable to access your IVC and PIN, please call Link Group, GW’s registrar, between 9:00 a.m. and 5:30 p.m. Monday to Friday (except English and Welsh public holidays) at +44 (0)371 277 1020. Calls from outside the UK will be charged at the applicable international rate. Calls are charged at the standard geographic rate and will vary by provider. Please note that calls may be monitored or recorded and Link Group cannot provide advice on the merits of the Transaction or the Scheme or give any financial, legal or tax advice.


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Access to the Court Meeting will be available from 1:00 p.m. (London time) on April 23, 2021, although the voting functionality will not be enabled until the Chair of the Court Meeting declares the poll open. Scheme Shareholders will be permitted to submit questions (via the Virtual Meeting Platform) to the GW directors during the course of the Court Meeting. Scheme Shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables Scheme Shareholders to be seen and heard through an audio visual link during the course of the Court Meeting if they would prefer to do so. The Chair of the Court Meeting will ensure that relevant matters relating to the formal business of the Court Meeting are addressed in the Court Meeting.

During the Court Meeting, you must ensure you are connected to the Internet at all times in order to submit questions and vote when the Chair commences polling. Therefore, it is your responsibility to ensure connectivity for the duration of the Court Meeting via your wireless or other Internet connection. The Virtual Meeting Guide contains further information on accessing and participating in the Court Meeting remotely via the Virtual Meeting Platform and is available on GW’s Internet website at http://www.gwpharm.com/acquisition-by-jazz-pharmaceuticals. The information contained on GW’s Internet website is not incorporated into, and does not form a part of, the accompanying proxy statement or any other report or document on file with or furnished to the SEC.

If you wish to appoint a proxy and for them to attend the Court Meeting on the Virtual Meeting Platform on your behalf, please contact Link Group at +44 (0)371 277 1020*.

If your ordinary shares are held through a broker, bank, trust company or other nominee and you wish to access the Virtual Meeting Platform, you will need to contact your broker, bank, trust company or other nominee immediately. Your broker, bank, trust company or other nominee will need to have completed a letter of representation and presented this to Link Group no later than 72 hours before the start of the meeting in order to obtain your unique login code and PIN number to access the Virtual Meeting Platform. If you are in any doubt about your shareholding, please contact Link Group at +44 (0)371 277 1020*.

*Lines are open from 9:00 a.m. to 5:30 p.m. (London time) Monday to Friday; calls are charged at the standard geographic rate and will vary by provider. Calls outside the UK will be charged at the applicable international rate.

 

3.

RIGHT TO APPOINT A PROXY; PROCEDURE FOR APPOINTMENT

Scheme Shareholders are strongly encouraged to submit proxy appointments and instructions for the Court Meeting as soon as possible, using any of the methods (by post, online or electronically through CREST) set out below. Scheme Shareholders are also strongly encouraged to appoint the Chair of the Court Meeting as their proxy. If any other person is appointed as proxy, he or she will not be permitted to attend the Court Meeting in person, but will be able to attend, submit questions and vote at the Court Meeting remotely via the Virtual Meeting Platform as described above.

The completion and return of the blue form of proxy by post (or appointment of a proxy online or through CREST) will not prevent you from remotely attending, submitting questions and voting at the Court Meeting, in each case via the Virtual Meeting Platform, if you are entitled to and wish to do so.

A Scheme Shareholder entitled to attend and vote at the Court Meeting may appoint one or more proxies to exercise all or any of such Scheme Shareholder’s rights to attend, submit questions and, on a poll, to vote (in each case, remotely, via the Virtual Meeting Platform), instead of him or her. A proxy need not be a Scheme Shareholder but must attend the meeting for the Scheme Shareholder’s vote to be counted. If a Scheme Shareholder appoints more than one proxy to attend the meeting, each proxy must be appointed to exercise the rights attached to a different share or shares held by the Scheme Shareholder. If a Scheme Shareholder wishes to appoint more than one proxy, they should contact Link Group for further blue forms of proxy or photocopy the blue form of proxy as required.


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Scheme Shareholders who do not appoint a proxy will still be entitled to remotely attend, submit questions and vote at the Court Meeting via the Virtual Meeting Platform. Scheme Shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables Scheme Shareholders to be seen and heard through an audio visual link during the course of the Court Meeting if they would prefer to do so.

 

(a)

Sending blue form of proxy by post

A blue form of proxy, for use at the Court Meeting, has been provided with this notice. Instructions for its use are set out on the form. It is requested that the blue form of proxy (together with any power of attorney or other authority, if any, under which it is signed, or a duly certified copy thereof) be returned in the pre-paid envelope provided by Link Group to Link Group, PXS1, Central Square, 29 Wellington Street, Leeds, LS1 4DL, United Kingdom, so as to be received as soon as possible and in any event not later than 2:00 p.m. (London time) on April 21, 2021 (or, in the case of an adjournment of the Court Meeting, 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the time appointed for the adjourned meeting).

If the blue form of proxy for the Court Meeting is not received by Link Group by the relevant time, it may be emailed to post_proxy_deadline_court_votes@linkgroup.co.uk at any time prior to the commencement of the Court Meeting.

 

(b)

Online appointment of proxies

As an alternative to completing and returning the printed blue form of proxy, proxies may be appointed electronically by logging on to the following website: www.signalshares.com and following the instructions therein. Full details of the procedure to be followed to appoint a proxy electronically are given on the website. For an electronic proxy appointment to be valid, the appointment must be received by Link Group not later than 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the time fixed for the Court Meeting or any adjournment thereof. If the electronic proxy appointment is not received by this time, the blue form of proxy may be emailed to post_proxy_deadline_court_votes@linkgroup.co.uk any time prior to the commencement of the Court Meeting or any adjournment thereof. Full details of the procedure to be followed to appoint a proxy electronically are given on the website.

 

(c)

Electronic appointment of proxies through CREST

If you hold GW ordinary shares in uncertificated form through CREST and wish to appoint a proxy or proxies for the Court Meeting (or any adjournment thereof) by using the CREST electronic proxy appointment service, you may do so by using the procedures described in the CREST Manual. CREST personal members or other CREST sponsored members, and those CREST members who have appointed any voting service provider(s), should refer to their CREST sponsor or voting service provider(s), who will be able to take the appropriate action on their behalf.

In order for a proxy appointment or instruction made using the CREST service to be valid, the appropriate CREST message (a “CREST Proxy Instruction”) must be properly authenticated in accordance with the specifications of Euroclear and must contain the information required for such instructions as described in the CREST Manual. The message (regardless of whether it constitutes the appointment of a proxy or an amendment to the instructions given to a previously appointed proxy) must, in order to be valid, be transmitted so as to be received by GW’s Registrar (ID: RA10) not later than 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the time fixed for the Court Meeting or any adjournment thereof. For this purpose, the time of receipt will be taken to be the time (as determined by the timestamp applied to the message by the CREST Applications Host) from which GW’s Registrar is able to retrieve the message by enquiry to CREST in the manner prescribed by CREST. If the CREST proxy appointment or instruction is not received by this time, the blue form of proxy may be emailed to post_proxy_deadline_court_votes@linkgroup.co.uk any time prior to the commencement of the Court Meeting or any adjournment thereof.


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CREST members and, where applicable, their CREST sponsors or voting service providers should note that Euroclear does not make available special procedures in CREST for any particular messages. Normal system timings and limitations will therefore apply in relation to the input of CREST Proxy Instructions. It is the responsibility of the CREST member concerned to take (or, if the CREST member is a CREST personal member or sponsored member or has appointed any voting service provider(s), to procure that his/her CREST sponsor or voting service provider(s) take(s)) such action as shall be necessary to ensure that a message is transmitted by means of the CREST system by any particular time. For further information on the logistics of submitting messages in CREST, CREST members and, where applicable, their CREST sponsors or voting service providers are referred, in particular, to those sections of the CREST Manual concerning practical limitations of the CREST system and timings.

GW may treat as invalid a CREST Proxy Instruction in the circumstances set out in Regulation 35(5)(a) of the CREST Regulations.


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THIS NOTICE APPLIES TO ORDINARY SHAREHOLDERS ONLY.

ADS HOLDERS SHOULD REFER TO THE SEPARATE NOTICE SENT BY THE DEPOSITARY TO

THEM WITH THE PROXY STATEMENT.

 

LOGO

GW Pharmaceuticals plc

(Incorporated and registered in England and Wales

with registered number 04160917)

NOTICE OF GENERAL MEETING OF GW PHARMACEUTICALS PLC

TO BE HELD ON APRIL 23, 2021

NOTICE is hereby given that a General Meeting (the “General Meeting”) of GW Pharmaceuticals plc, a public limited company incorporated under the laws of England and Wales (“GW” or the “Company”), will be held on April 23, 2021, at 2:15 p.m. (London time) (or as soon thereafter as the Court Meeting (as defined in the Scheme of Arrangement that is included in the accompanying proxy statement) is concluded or adjourned), at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom for the purpose of considering and, if thought fit, passing the following resolutions, one of which is a special resolution and one of which is an ordinary resolution.

Unless the context requires otherwise, any capitalized term used but not defined in this notice shall have the meaning given to such term in the accompanying proxy statement.

Special resolution

Amendment of the Articles of Association and General Authorization to Carry Scheme into Effect

 

1.

THAT, for the purpose of giving effect to the scheme of arrangement dated March 15, 2021 between GW and the holders of Scheme Shares (as defined in such scheme of arrangement), a print of which has been produced to this meeting and for the purposes of identification signed by the Chair of this meeting, in its original form or with or subject to any modification, addition, or condition as may be agreed from time to time (including, for the avoidance of doubt, after the date of this resolution) between the Company, Jazz Pharmaceuticals UK Holdings Limited (“Bidco”) and Jazz Pharmaceuticals Public Limited Company (“Jazz”) and which (if required) is approved by the High Court of Justice of England and Wales (the “Court”), or which is otherwise imposed by the Court and is mutually acceptable to the Company, Bidco and Jazz each acting reasonably and in good faith (the “Scheme”):

 

  (A)

the directors of GW (or a duly authorized committee of the directors) be and are hereby authorized to take all such action as they may consider necessary or appropriate for carrying the Scheme into effect; and

 

  (B)

with effect from the passing of this resolution, the articles of association of GW be and are hereby amended by the adoption and inclusion of the following new article 45:

“45 Scheme of Arrangement

 

  (i)

In this article, references to the “Scheme” are to the Scheme of Arrangement under Part 26 of the UK Companies Act 2006 between the Company and the holders of Scheme Shares dated March 15, 2021 in its original form or with or subject to any modification, addition or condition as may be agreed between the Company, Jazz Pharmaceuticals UK Holdings Limited (“Bidco”) and Jazz Pharmaceuticals Public Limited Company (“Jazz”) and which (if required) is approved by


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  the Court, or which is otherwise imposed by the Court and is mutually acceptable to the Company, Bidco and Jazz each acting reasonably and in good faith and, save as defined in this article, expressions defined in the Scheme shall have the same meanings in this article. Capitalized terms used but not otherwise defined in this article shall have the meanings ascribed to such terms in the Scheme.

 

  (ii)

Notwithstanding any other provision of these articles or the terms of any resolution, whether ordinary or special, passed by the Company in General Meeting, if the Company issues any shares (other than to any member of the Bidco Group or a nominee of any such person (each such person, a “Bidco Company”)) at or after the Voting Record Time but before the Scheme Record Time, such shares shall be issued subject to the terms of the Scheme (and shall be Scheme Shares for the purposes of the Scheme) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly.

 

  (iii)

Subject to the Scheme becoming effective, and notwithstanding any other provision of these articles, if any shares in the Company are issued or transferred to any person other than a Bidco Company (a “New Member”) after the Scheme Record Time (such shares the “Post-Scheme Shares”), such New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) will be obliged, upon the Scheme becoming effective (or, if later, upon the issue or transfer of the Post-Scheme Shares to such New Member), to transfer immediately all of its Post-Scheme Shares free of all encumbrances to Bidco (or to such other person as may be nominated by Bidco) who shall be obliged to acquire (or procure the acquisition by such other person of) all of the Post-Scheme Shares. In exchange for the transfer of the Post-Scheme Shares, Bidco (or such other person as has been nominated by Bidco) shall pay or procure the payment to the New Member of the same Cash Consideration and deliver or procure the delivery to the New Member of the same Exchange Shares that the New Member would have been entitled to receive pursuant to the Scheme had each Post-Scheme Share been a Scheme Share.

 

  (iv)

Notwithstanding the provisions of Article 45(iii), if, in respect of any New Member with a registered address in a jurisdiction outside Ireland, the United Kingdom or the United States, any Bidco Company or the Company is advised that the delivery of Exchange Shares to such New Member pursuant to Article 45(iii) would or might infringe the laws of such jurisdiction or would require any Bidco Company or the Company to observe any governmental or other consent or any registration, filing or other formality with which any Bidco Company or the Company (as the case may be) is unable to comply, or compliance with which by such person is regarded by such person or Bidco (in the case of Bidco, acting reasonably) as unduly onerous, Bidco may, in its sole discretion, determine that the relevant Exchange Shares shall not be delivered to such New Member and that (i) such Exchange Shares shall instead be sold at the best price which can reasonably be obtained in the market at the time of sale and (ii) the net proceeds of such sale (after the deduction of all expenses and commissions incurred in connection with such sale, including any amounts in respect of tax including any value added tax payable thereon, without interest and subject to deduction or withholding of any amounts as are required to be deducted or withheld from or with respect to such payment under any Applicable Law) shall be delivered to the relevant New Member.

 

  (v)

The provisions of paragraph 9 of the Scheme in respect of fractional entitlements shall apply, mutatis mutandis, in respect of any Exchange Shares to which New Members are entitled pursuant to Article 45(iii) above (and, for the avoidance of doubt, no New Member shall receive fractions of Exchange Shares).

 

  (vi)

If, after the Effective Time, the Company Ordinary Shares or Jazz Ordinary Shares shall have been changed to, or exchanged for, a different number or class of shares or securities by reason of any stock dividend, bonus issue, scrip dividend, subdivision, reorganization, merger, consolidation, reclassification, redesignation, recapitalization, share split, reverse share split, combination or exchange of shares, or a stock or scrip dividend shall be declared with a record date falling after the Effective Time, or any similar event shall have occurred, then the amount of


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  any Cash Consideration and/or Exchange Shares due to a New Member for each Post-Scheme Share pursuant to Article 45(iii) above shall be adjusted by the directors of the Company in such manner as the auditors of the Company may determine to be appropriate to provide Bidco and the New Members holding any Post-Scheme Share(s) with the same economic effect as contemplated by the Scheme prior to such event. References in this article to shares shall, following such adjustment, be construed accordingly.

 

  (vii)

To give effect to any transfer of Post-Scheme Shares required by this article, the Company may appoint any person as attorney and agent (the “agent”) for the New Member to execute and deliver as transferor a form of transfer or other instrument or instruction of transfer on behalf of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) in favour of Bidco (or such other person as Bidco may nominate) and do all such other things and execute and deliver all such documents as may in the opinion of the agent be necessary or desirable to vest the Post-Scheme Shares in Bidco (or such other person as Bidco may nominate) and pending such vesting to exercise all such rights attaching to the Post-Scheme Shares as Bidco may direct. If an agent is so appointed, the New Member shall not thereafter be entitled to exercise any rights attaching to the Post-Scheme Shares unless so agreed in writing by Bidco, and the Company may send to the agent any notice, circular, warrant or other document or communication which may otherwise be required to be sent to the New Member as a member of the Company.

 

  (viii)

The Company may give good receipt for the Cash Consideration and Exchange Shares for the Post-Scheme Shares and may register Bidco (or such other person as Bidco may nominate) as holder of the Post-Scheme Shares and issue to it certificate(s) for the same. The agent shall be empowered to execute and deliver as transferor a form of transfer or other instrument or instruction of transfer on behalf of the New Member (or any subsequent holder). The Company shall not be obliged to issue a certificate to the New Member for any Post-Scheme Shares.

 

  (ix)

Bidco shall settle (or procure the settlement) of the Cash Consideration and Exchange Shares within 14 days of the transfer of the Post-Scheme Shares by the New Member to Bidco (or to such other person as Bidco may nominate).

 

  (x)

Notwithstanding any other provision of these articles, neither the Company nor its directors shall register the transfer of any Scheme Shares effected between the Scheme Record Time and the Effective Time (other than to a Bidco Company or a nominee of a Bidco Company pursuant to the Scheme).

 

  (xi)

If the Scheme shall not have become effective by the date referred to in paragraph 12.2 of the Scheme, this article shall be of no effect.”

Ordinary resolution

Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements

 

2.

THAT, the compensation that may be paid or become payable to GW’s named executive officers in connection with the Transaction, as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of the accompanying proxy statement, including the associated narrative discussion, and the agreements or understandings pursuant to which such compensation may be paid or become payable, are hereby approved.


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YOUR VOTE IS IMPORTANT

Your vote at the General Meeting is very important. You are strongly encouraged to submit proxy appointments and instructions for the General Meeting as soon as possible.

By Order of the Board

 

LOGO

 

Douglas B. Snyder

Company Secretary

Registered Office:

Sovereign House, Vision Park, Chivers Way, Histon, Cambridge CB24 9BZ

GW Pharmaceuticals plc

Registered in England and Wales No. 04160917


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Notes:

The following notes explain your general rights as a GW shareholder and your right to remotely attend and vote at the General Meeting or to appoint someone else to vote on your behalf. For the avoidance of doubt, references in these notes to “GW shareholders” are to holders of GW ordinary shareholders only, not holders of GW ADSs.

 

1.

COVID-19 RESTRICTIONS

At the time of publication of this notice, the UK Government has prohibited large public gatherings, except in certain limited circumstances. In light of these measures, together with the uncertainty as to any additional and/or alternative measures that may be put in place by the UK Government, and in order to protect the health and safety of GW’s shareholders and GW directors, officers and employees, GW shareholders will not be permitted to attend the General Meeting in person, except for the Chair of the General Meeting and anyone else nominated by the Chair.

The COVID-19 situation is constantly evolving, and the UK Government may change current restrictions or implement further measures relating to the holding of shareholder meetings during the affected period. Any changes to the arrangements for the General Meeting will be publicly communicated to GW shareholders before the General Meeting, including through GW’s Internet website http://www.gwpharm.com/acquisition-by-jazz-pharmaceuticals. The information contained on GW’s Internet website is not incorporated into, and does not form a part of, the accompanying proxy statement or any other report or document on file with or furnished to the U.S. Securities and Exchange Commission (the “SEC”).

 

2.

INSTRUCTIONS FOR ACCESSING THE VIRTUAL MEETING PLATFORM

GW shareholders will be given the opportunity to remotely attend, submit questions and vote at the General Meeting via a virtual meeting platform provided by Lumi AGM UK Limited (the “Virtual Meeting Platform”). GW shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW shareholders to be seen and heard through an audio visual link during the course of the General Meeting if they would prefer to do so.

GW shareholders can access the Virtual Meeting Platform using a web browser on a PC, smartphone device or tablet. The web browser must be compatible with the latest browser versions of Chrome, Firefox, Internet Explorer 11 (Internet Explorer v. 10 and below are not supported), Edge and Safari. To remotely attend, submit questions and/or vote using this method, please go to https://web.lumiagm.com.

Alternatively, GW shareholders can access the Virtual Meeting Platform by downloading the latest version of the Lumi AGM application (the App) onto their smartphone device or tablet. The App can be downloaded from the Google Play Store Market or the Apple® App Store by searching by the application name “Lumi AGM”. If you have previously downloaded the App, please ensure you are using the latest version by checking the status in the Google Play Store Market or the Apple® App Store. Please be aware that the App does not support Android 4.4 (or below), iOS 9 (or below) or any other operating system.

Once you have accessed https://web.lumiagm.com from your web browser, or downloaded the App, you will be asked to enter the Lumi Meeting ID which is 128-194-986. You will then be prompted to enter your unique Investor Code (“IVC”) and PIN. These can be found printed on the Attendance Card attached to the Forms of Proxy. Access to the General Meeting via the website or App will be available from 1:00 p.m. on April 23, 2021, as further detailed below. If you are unable to access your IVC and PIN, please call Link Group, GW’s registrar, between 9:00 a.m. and 5:30 p.m. Monday to Friday (except English and Welsh public holidays) at +44 (0)371 277 1020. Calls from outside the UK will be charged at the applicable international rate. Different charges may apply to calls from mobile telephones. Please note that calls may be monitored or recorded and Link Group cannot provide advice on the merits of the Transaction or the Scheme or give any financial, legal or tax advice.

Access to the General Meeting will be available from 1:00 p.m. on April 23, 2021, although the voting functionality will not be enabled until the Chair of the General Meeting declares the poll open. GW shareholders will be permitted to submit questions (via the Virtual Meeting Platform) to the GW directors during the course of


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the General Meeting. GW shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW shareholders to be seen and heard through an audio visual link during the course of the General Meeting if they would prefer to do so. The Chair of the General Meeting will ensure that relevant matters relating to the formal business of the General Meeting are addressed in the General Meeting.

During the General Meeting, you must ensure you are connected to the Internet at all times in order to submit questions and vote when the Chair commences polling. Therefore, it is your responsibility to ensure connectivity for the duration of the General Meeting via your wireless or other Internet connection. The Virtual Meeting Guide contains further information on accessing and participating in the General Meeting remotely via the Virtual Meeting Platform and is available on GW’s Internet website at http://www.gwpharm.com/acquisition-by-jazz-pharmaceuticals. The information contained on GW’s Internet website is not incorporated into, and does not form a part of, the accompanying proxy statement or any other report or document on file with or furnished to the SEC.

If you wish to appoint a proxy and for them to attend the General Meeting on the Virtual Meeting Platform on your behalf, please contact Link Group at +44 (0)371 277 1020*.

If your shares are held through a broker, bank, trust company or other nominee and you wish to access the Virtual Meeting Platform, you will need to contact your broker, bank, trust company or other nominee immediately. Your broker, bank, trust company or other nominee will need to have completed a letter of representation and presented this Link Group no later than 72 hours before the start of the meeting in order to obtain your unique login code and PIN number to access the Virtual Meeting Platform. If you are in any doubt about your shareholding, please contact Link Group at +44 (0)371 277 1020*.

*Lines are open from 9:00 a.m. to 5:30 p.m. Monday to Friday; calls are charged at the standard geographic rate and will vary by provider. Calls outside the UK will be charged at the applicable international rate.

 

3.

ENTITLEMENT TO ATTEND AND VOTE

Pursuant to Regulation 41(1) of the Uncertificated Securities Regulations 2001 (as amended), GW has specified that only those shareholders registered on the register of members of GW at 6:00 p.m. (London time) on April 21, 2021 (or, if the meeting is adjourned to a time more than 48 hours after such time, at 6:00 p.m. (London time) on the day which is two days prior to the date of the adjourned meeting) (the “Voting Record Time”) shall be entitled to attend (remotely, via the Virtual Meeting Platform) and vote (remotely, via the Virtual Meeting Platform, or by proxy) at the General Meeting in respect of the number of ordinary shares registered in their name at that time. If the meeting is adjourned to a time not more than 48 hours after the Voting Record Time, that time will also apply for the purpose of determining the entitlement of members to attend and vote (and for the purposes of determining the number of votes they may cast) at the adjourned meeting. Changes to the register of members after the relevant deadline shall be disregarded in determining the rights of any person to attend and vote at the meeting.

 

4.

RIGHT TO APPOINT A PROXY; PROCEDURE FOR APPOINTMENT

GW shareholders are strongly encouraged to submit proxy appointments and instructions for the General Meeting as soon as possible, using any of the methods (by post, online or electronically through CREST) set out below. GW shareholders are also strongly encouraged to appoint the Chair of the General Meeting as their proxy. If any other person is appointed as proxy, he or she will not be permitted to attend the General Meeting in person, but will be able to attend, submit questions and vote at the General Meeting remotely via the Virtual Meeting Platform as described above.

The completion and return of the yellow form of proxy by post (or appointment of a proxy online or through CREST) will not prevent you from remotely attending, submitting questions and voting at the General Meeting, in each case via the Virtual Meeting Platform, if you are entitled to and wish to do so.


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A GW shareholder entitled to attend and vote at the General Meeting may appoint one or more proxies to exercise all or any of such GW shareholder’s rights to attend, submit questions and, on a poll, to vote (in each case, remotely, via the Virtual Meeting Platform), instead of him or her. A proxy need not be a GW shareholder but must remotely attend the General Meeting for the GW shareholder’s vote to be counted. If a GW shareholder appoints more than one proxy to attend the meeting, each proxy must be appointed to exercise the rights attached to a different share or shares held by the GW shareholder. If a GW shareholder wishes to appoint more than one proxy they should contact Link Group for further yellow forms of proxy or photocopy the yellow form of proxy as required.

GW shareholders who do not appoint a proxy will still be entitled to remotely attend, submit questions and vote at the Court Meeting via the Virtual Meeting Platform. GW shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW shareholders to be seen and heard through an audio visual link during the course of the General Meeting if they would prefer to do so.

 

(a)

Sending yellow form of proxy by post

A yellow form of proxy, for use at the General Meeting, has been provided with this notice. Instructions for its use are set out on the form. It is requested that the yellow form of proxy (together with any power of attorney or other authority, if any, under which it is signed, or a duly certified copy thereof) be returned in the pre-paid envelope provided by GW’s Registrar to Link Group, PXS1, Central Square, 29 Wellington Street, Leeds LS1 4DL, United Kingdom, so as to be received as soon as possible and in any event not later than 2:15 p.m. (London time) on April 21, 2021 (or, in the case of an adjournment of the General Meeting, 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the time appointed for the adjourned meeting).

If the yellow form of proxy for the General Meeting is not received by Link Group by the relevant time, it will be invalid.

 

(b)

Online appointment of proxies

As an alternative to completing and returning the printed yellow form of proxy, proxies may be appointed electronically by logging on to the following website: www.signalshares.com and following the instructions therein. Full details of the procedure to be followed to appoint a proxy electronically are given on the website. For an electronic proxy appointment to be valid, the appointment must be received by Link Group not later than 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the time fixed for the General Meeting or any adjournment thereof. Full details of the procedure to be followed to appoint a proxy electronically are given on the website.

 

(c)

Electronic appointment of proxies through CREST

If you hold GW ordinary shares in uncertificated form through CREST and wish to appoint a proxy or proxies for the General Meeting (or any adjournment thereof) by using the CREST electronic proxy appointment service, you may do so by using the procedures described in the CREST Manual. CREST personal members or other CREST sponsored members, and those CREST members who have appointed any voting service provider(s), should refer to their CREST sponsor or voting service provider(s), who will be able to take the appropriate action on their behalf.

In order for a proxy appointment or instruction made using the CREST service to be valid, the appropriate CREST message (a “CREST Proxy Instruction”) must be properly authenticated in accordance with the specifications of Euroclear and must contain the information required for such instructions as described in the CREST Manual. The message (regardless of whether it constitutes the appointment of a proxy or an amendment to the instructions given to a previously appointed proxy) must, in order to be valid, be transmitted so as to be received by GW’s Registrar (ID: RA10) not later than 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the time fixed for the General Meeting or any adjournment thereof. For this purpose, the time of receipt will be taken to be the time (as determined by the timestamp applied to the message by the CREST Applications Host) from which GW’s Registrar is able to retrieve the message by enquiry to CREST in the manner prescribed by CREST.


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CREST members and, where applicable, their CREST sponsors or voting service providers should note that Euroclear does not make available special procedures in CREST for any particular messages. Normal system timings and limitations will therefore apply in relation to the input of CREST Proxy Instructions. It is the responsibility of the CREST member concerned to take (or, if the CREST member is a CREST personal member or sponsored member or has appointed any voting service provider(s), to procure that his/her CREST sponsor or voting service provider(s) take(s)) such action as shall be necessary to ensure that a message is transmitted by means of the CREST system by any particular time. For further information on the logistics of submitting messages in CREST, CREST members and, where applicable, their CREST sponsors or voting service providers are referred, in particular, to those sections of the CREST Manual concerning practical limitations of the CREST system and timings.

GW may treat as invalid a CREST Proxy Instruction in the circumstances set out in Regulation 35(5)(a) of the CREST Regulations.

 

5.

APPOINTMENT OF A PROXY BY JOINT HOLDERS

In the case of joint holders, where more than one of the joint holders purports to appoint one or more proxies, only the purported appointment submitted by the most senior holder will be accepted. Seniority shall be determined by the order in which the names of the joint holders stand in GW’s register of members in respect of the joint holding.

 

6.

CORPORATE REPRESENTATIVES

Any corporation which is a GW shareholder can appoint one or more corporate representatives who may exercise on its behalf all of its powers, provided that if two or more representatives purport to vote in respect of the same shares: if they purport to exercise the power in the same way as each other, the power is treated as exercised in that way; and in other cases, the power is treated as not exercised.

 

7.

VOTES TO BE TAKEN BY A POLL AND RESULTS

At the General Meeting voting on the resolutions will be by poll rather than a show of hands. This is a more transparent method of voting as member votes are to be counted according to the number of ordinary shares held. The results of the poll will be announced by the filing of a current report on Form 8-K with the SEC and published on GW’s Internet website as soon as reasonably practicable following the conclusion of the General Meeting.

The “WITHHELD” option on the form of proxy is provided to enable GW shareholders to abstain from voting on the resolutions. However, a vote withheld is not a vote in law and will not be counted in the calculation of proportion of votes “FOR” and “AGAINST” the resolutions.

 

8.

WEBSITE PROVIDING INFORMATION REGARDING THE GENERAL MEETING

Information regarding the General Meeting, and a copy of this Notice may be found on GW’s Internet website at http://www.gwpharm.com/acquisition-by-jazz-pharmaceuticals. The information contained on GW’s Internet website is not incorporated into, and does not form a part of, this proxy statement or any other report or document on file with or furnished to the SEC.

 

9.

ISSUED SHARE CAPITAL AND TOTAL VOTING RIGHTS

As at March 11, 2021 (being the latest practicable date prior to the publication of this notice), GW’s issued share capital consisted of 378,407,422 ordinary shares carrying one vote each. Therefore, the total voting rights in GW as at March 11, 2021 were 378,407,422 votes.


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10.

FURTHER QUESTIONS AND COMMUNICATION

As set out in paragraph 1 above, GW shareholders will be permitted to submit questions (via the Virtual Meeting Platform) to the GW directors during the course of the General Meeting. GW shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW shareholders to be seen and heard through an audio visual link during the course of the General Meeting if they would prefer to do so. The Chair of the General Meeting will ensure that relevant matters relating to the formal business of the General Meeting are addressed in the General Meeting.

GW shareholders who have any queries about the General Meeting should contact the Shareholder Helpline operated by Link Group between 9:00 a.m. and 5:30 p.m. Monday to Friday (except English and Welsh public holidays) at +44 371 664 0321. Calls from outside the UK will be charged at the applicable international rate. Calls are charged at the standard geographic rate and will vary by provider. Please note that calls may be monitored or recorded and Link Group cannot provide advice on the merits of the Transaction or the Scheme or give any financial, legal or tax advice.

GW shareholders may not use any electronic address or fax number provided in this Notice or in any related documents to communicate with GW for any purpose other than those expressly stated. Any electronic communications, including the lodgement of any electronic proxy appointment, received by GW, or its agents, that is found to contain any virus will not be accepted.


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REFERENCES TO ADDITIONAL INFORMATION

This proxy statement incorporates important business and financial information about GW and Jazz from other documents that GW and Jazz have filed with the SEC, and that are contained in or incorporated by reference into this proxy statement. For a list of documents incorporated by reference into this proxy statement, please see the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement. This information is available through the SEC’s website at www.sec.gov.

You may request copies of this proxy statement and any of the documents incorporated by reference into this proxy statement, without charge, by directing a request to GW’s Global Corporate Communications Department by email at AskUs@gwpharm.com or by telephone at +1 (760) 795-2200 or:

 

   

if you hold GW ordinary shares, by contacting GW’s proxy solicitor, D.F. King, by telephone at +44 207 920 9700 or by email at gwpharma@dfkingltd.co.uk or GW’s registrar, Link Group, by telephone at +44 371 664 0321; and

 

   

if you hold GW ADSs, by contacting GW’s proxy solicitor, D.F. King, by telephone at +44 207 920 9700 or by email at gwpharma@dfkingltd.co.uk.

In order for you to receive timely delivery of the documents in advance of the Shareholder Meetings to be held on April 23, 2021, you must request the information no later than five business days prior to the date of the Shareholder Meetings, being April 16, 2021.

ABOUT THIS PROXY STATEMENT

This document constitutes a proxy statement of GW under Section 14(a) of the Securities Exchange Act of 1934, as amended. It also constitutes a notice of meeting with respect to the Court Meeting and the General Meeting and contains an explanatory statement in respect of the Scheme of Arrangement (as required by section 897 of the Companies Act 2006).

Jazz has supplied all information contained or incorporated by reference into this proxy statement relating to Jazz and Bidco, and GW has supplied all such information relating to GW.

GW and Jazz have not authorized anyone to provide you with information that is different from that contained in or incorporated by reference into this proxy statement, and GW and Jazz take no responsibility for, and can provide no assurance as to the reliability of, any information others may give you. This proxy statement is dated March 15, 2021, and you should not assume that the information contained in this proxy statement is accurate as of any date other than such date. Further, you should not assume that the information incorporated by reference into this proxy statement is accurate as of any date other than the date of the incorporated document. Neither the mailing of this proxy statement to GW shareholders nor the delivery of Jazz ordinary shares pursuant to the Scheme of Arrangement will create any implication to the contrary.

This proxy statement is first being mailed or otherwise delivered to GW shareholders on or about March 17, 2021.


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CERTAIN DEFINITIONS

Unless otherwise indicated or as the context otherwise requires, all references in this proxy statement to:

 

   

“ADS deliverables” means the per ADS cash consideration and the per ADS share deliverable.

 

   

“Average Market Exchange Rate” means the average $:£ exchange rate to be calculated by dividing the total amount of US dollars converted by Bidco pursuant to the Currency Conversion Facility by the total amount of British pounds received by Bidco pursuant to such currency conversion trades less any applicable and properly incurred transaction, foreign exchange and dealing costs or commissions associated with such conversion.

 

   

“Bidco” means Jazz Pharmaceuticals UK Holdings Limited, a private limited company incorporated in England and Wales and an indirect wholly owned subsidiary of Jazz.

 

   

“Bidco Group” means Jazz, Bidco and other any direct or indirect subsidiaries of Jazz from time to time.

 

   

“cash consideration” means an amount per Scheme Share equal to $16.6623 in cash.

 

   

“Cash Memorandum Account” has the meaning given in the CREST Manual.

 

   

“Centerview” means Centerview Partners LLC, financial advisor to GW.

 

   

“closing” means the closing of the Transaction.

 

   

“closing date” means the date on which the closing actually occurs.

 

   

“Companies Act” means the Companies Act 2006.

 

   

“Court” means the High Court of Justice of England and Wales.

 

   

“Court Meeting” means the meeting of the eligible GW shareholders convened with the permission of the Court for the purpose of considering and, if thought fit, approving the Scheme Proposal.

 

   

“Court Order” means the order of the Court sanctioning the Scheme of Arrangement under section 899 of the Companies Act.

 

   

“Court Sanction Hearing” means the Court hearing at which the Court will decide whether to sanction the Scheme of Arrangement.

 

   

“CREST Manual” means the CREST Manual published by Euroclear as amended from time to time.

 

   

“Currency Conversion Facility” means the facility under which Scheme Shareholders (other than the Depositary or any other entity which may hold legal title to the GW ordinary shares underlying the GW ADSs) may elect to receive the cash consideration in British pounds.

 

   

“Currency Election” means an election under the Currency Conversion Facility to receive the cash consideration in British pounds instead of US dollars which is made by eligible Scheme Shareholders in accordance with the instructions set out in the section entitled “Notes for Making Currency Elections” beginning on page 165 of this proxy statement.

 

   

“Deposit Agreement” means the deposit agreement, dated as of May 7, 2013, by and among GW, the Depositary and all holders and beneficial owners of GW ADSs issued thereunder, as amended, modified or supplemented from time to time.

 

   

“Depositary” means Citibank, N.A. as depositary under the Deposit Agreement.

 

   

“DR Nominee” has the meaning set forth in the Scheme of Arrangement (being a company falling within Section 67(6) and Section 93(3) of the UK Finance Act 1986 as Bidco may in its sole discretion appoint in order to act as transferee of the GW ordinary shares underlying the GW ADSs pursuant to the Scheme of Arrangement).

 

   

“DTC” means The Depository Trust Company.

 

   

“effective time” means the time at which the Scheme of Arrangement becomes effective (being the time that the Court Order is delivered to the Registrar of Companies in England and Wales in accordance with section 899(4) of the Companies Act).


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“Euroclear” means Euroclear UK & Ireland Limited incorporated in England and Wales with registered number 02878738.

 

   

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

   

“Form of Election” means the form of election under which a registered holder of GW ordinary shares (other than the Depositary) in certificated form may make a Currency Election, subject to the terms and conditions set out in this proxy statement.

 

   

“General Meeting” means the general meeting of the eligible GW shareholders to be held for the purpose of considering and, if thought fit, passing the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements.

 

   

“Goldman Sachs” means Goldman Sachs & Co. LLC, financial advisor to GW.

 

   

“GW” means GW Pharmaceuticals plc, a public limited company incorporated in England and Wales.

 

   

“GW ADS Fees” means (i) a $0.05 per GW ADS cancellation fee, (ii) a $0.05 per GW ADS distribution fee for the distribution of the ADS deliverables and (iii) any other fees and expenses payable by such holders pursuant to the terms of the Deposit Agreement.

 

   

“GW ADS Register” means the register of GW ADSs and registered holders of GW ADSs maintained by the Depositary.

 

   

“GW ADSs” means American Depositary Shares representing, as of the date of this proxy statement, a beneficial ownership interest in 12 GW ordinary shares on deposit with the Depositary (or a custodian under the Deposit Agreement), subject to the terms and conditions of the Deposit Agreement.

 

   

“GW ADS Voting Record Time” means 5:00 p.m. (New York time) on March 10, 2021.

 

   

“GW Articles” means the articles of association of GW.

 

   

“GW Board” means the Board of Directors of GW.

 

   

“GW Board recommendation” means the recommendation by the GW Board that GW shareholders vote in favor of the Scheme Proposal at the Court Meeting and the Scheme Implementation Proposal at the General Meeting.

 

   

“GW ordinary shares” means ordinary shares, par value £0.001 per share, of GW.

 

   

“GW shareholders” means holders of GW ordinary shares and/or holders of GW ADSs.

 

   

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

 

   

“Jazz” means Jazz Pharmaceuticals Public Limited Company, a public limited company incorporated in the Republic of Ireland with registered number 399192.

 

   

“Jazz average share price” means the volume weighted average sales price of the Jazz ordinary shares for the consecutive period of 15 trading days beginning at 9:30 a.m. New York time on the 18th trading day immediately preceding the date on which the Scheme of Arrangement becomes effective and concluding at 4:00 p.m. New York time on the fourth trading day immediately preceding such date, as calculated by Bloomberg L.P.

 

   

“Jazz Board” means the Board of Directors of Jazz.

 

   

“Jazz Constitution” means the memorandum and articles of association of Jazz.

 

   

“Jazz ordinary shares” means ordinary shares, nominal value $0.0001 per share, of Jazz.

 

   

“Nasdaq” means the NASDAQ Global Market or the NASDAQ Stock Market LLC, as applicable.

 

   

“Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements” means the proposal at the General Meeting to approve, on an advisory, non-binding basis, the compensation that may be paid or become payable to GW’s named executive officers in connection with the Transaction,


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as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of this proxy statement, including the associated narrative discussion, and the agreements or understandings pursuant to which such compensation may be paid or become payable.

 

   

“per ADS cash consideration” means an amount equal to $200 in cash (less the (i) GW ADS Fees and (ii) applicable withholding taxes).

 

   

“per ADS share deliverable” means an amount of Jazz ordinary shares equal to 12 times the share deliverable.

 

   

“Proposals” means the Scheme Proposal, the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements.

 

   

“required GW shareholder approvals” means the Scheme Proposal and the Scheme Implementation Proposal.

 

   

“scheme deliverables” means the cash consideration and the share deliverable.

 

   

“Scheme Implementation Proposal” means at the General Meeting the proposal to (i) authorize the GW Board to take all action necessary or appropriate for carrying the Scheme of Arrangement into effect and (ii) make certain amendments to the GW Articles in order to facilitate the Transaction, including provisions to ensure that any GW ordinary shares that are issued at or after the Voting Record Time will either be subject to the terms of the Scheme of Arrangement or will be acquired by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) on the same terms as under the Scheme of Arrangement.

 

   

“Scheme of Arrangement” or “Scheme” means the court-sanctioned scheme of arrangement to effect the Transaction under Part 26 of the Companies Act, as set out in the section entitled “The Scheme of Arrangement” beginning on page 120 of this proxy statement.

 

   

“Scheme Proposal” means the proposal at the Court Meeting to approve the Scheme of Arrangement.

 

   

“Scheme Record Time” has the meaning set forth in the Scheme of Arrangement.

 

   

“Scheme Shareholders” has the meaning set forth in the Scheme of Arrangement, being the holders of Scheme Shares whose names appear in the register of members of GW at the Scheme Record Time.

 

   

“Scheme Shares” has the meaning set forth in the Scheme of Arrangement, being the GW ordinary shares:

 

   

in issue at the date of this proxy statement;

 

   

(if any) issued after the date of this proxy statement and prior to the Voting Record Time;

 

   

(if any) issued at or after the Voting Record Time and prior to the Scheme Record Time, either on terms that the original or any subsequent holders thereof shall be bound by the Scheme of Arrangement or in respect of which the holders thereof shall have agreed in writing to be bound by the Scheme of Arrangement;

in each case remaining in issue at the Scheme Record Time, but excluding (i) any GW ordinary shares which are registered in the name of or beneficially owned by any member of the Bidco Group or by any of their respective nominees and (ii) any GW ordinary shares held in treasury by GW.

 

   

“SEC” means the U.S. Securities and Exchange Commission.

 

   

“Securities Act” means the Securities Act of 1933, as amended.

 

   

“share deliverable” means an amount of Jazz ordinary shares equal to the exchange ratio.

 

   

“Shareholder Meetings” means the Court Meeting and the General Meeting.

 

   

“Transaction” means the acquisition by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) of the entire issued and to be issued share capital of GW pursuant to the Transaction Agreement and the Scheme of Arrangement.


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“Transaction Agreement” means the transaction agreement, dated as of February 3, 2021, by and among GW, Jazz and Bidco, as it may be amended from time to time.

 

   

“transaction deliverables” means the scheme deliverables, when used in relation to holders of GW ordinary shares, and the ADS deliverables, when used in relation to holders of GW ADSs.

 

   

“TTE Instruction” means a transfer to escrow instruction as defined in the CREST Manual.

 

   

“VAT” means (i) any tax charged or imposed pursuant to Council Directive 2006/112/EC or any national legislation implementing such Directive; and (ii) to the extent not included in (i), any value added tax imposed by the United Kingdom Value Added Tax Act 1994 and any related secondary legislation.

 

   

“Virtual Meeting Platform” means a virtual meeting platform provided by Lumi AGM UK Limited.

 

   

“Voting Record Time” means 6:00 p.m. (London time) on April 21, 2021 or, if the Court Meeting and/or General Meeting is adjourned, 6:00 p.m. (London time) on the date which is two business days before the date fixed for the adjourned meeting(s).

 

   

“$”, “US dollars” and “USD” are references to United States dollars.

 

   

“£”, “British pounds” and “GBP” are references to the lawful currency of the United Kingdom.


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EXPECTED TIMETABLE OF PRINCIPAL EVENTS

All dates and times are based on GW’s current expectations and are subject to change. If any of the dates or times in this expected timetable change, GW will publicly announce the changes.

 

Event

  

Time and/or Date(1)

Publication of this document    March 15, 2021
GW ADS Voting Record Time    5:00 p.m. (New York time) on March 10, 2021
Latest time for receipt by the Depositary of GW ADS voting instructions for Court Meeting and General Meeting    10:00 a.m. (New York time) on April 19, 2021
Latest time for receipt by GW’s Registrar of forms of proxy for Court Meeting (BLUE form)    2:00 p.m. (London time) on April 21, 2021(2)
Latest time for receipt by GW’s Registrar of forms of proxy for General Meeting (YELLOW form)    2:15 p.m. (London time) on April 21, 2021(3)
Latest time for receipt by GW’s Registrar of Form of Election (RED form) or TTE Instructions relating to Currency Election    2:00 p.m. (London time) on April 21, 2021
Voting Record Time    6:00 p.m. (London time) on April 21, 2021(4)
Court Meeting    2:00 p.m. (London time) on April 23, 2021
General Meeting    2:15 p.m. (London time) on April 23, 2021(5)

 

The following dates and times associated with the Scheme of Arrangement are presented for illustrative purposes only, are subject to change and will depend on, among other things, the date on which the conditions to the Scheme of Arrangement are satisfied or, if capable of waiver, waived and the date on which the Court sanctions the Scheme of Arrangement. GW will give adequate notice of all of these dates and times, when known, by public announcement. Further updates and changes to these times will be notified in the same way. See also note (1).

 

Last day for dealings in ADSs on Nasdaq by investors    D-1 or D
Scheme Record Time    6:00 p.m. (London time) on D-1
Formal suspension by Nasdaq of dealings in ADSs    D
Court Sanction Hearing    D
Effective date of the Scheme of Arrangement    D (“D”)
Last day for settlement of trades of GW ADSs on Nasdaq    D+1 or D+2(6)
Latest date for dispatch of checks and crediting of CREST accounts for the scheme deliverables    D+14

 

(1)

The dates and times given are indicative only and are based on current expectations and are subject to change (including as a result of changes to the regulatory timetable).

(2)

It is requested that the blue form of proxy for the Court Meeting be received by 2:00 p.m. (London time) on April 21, 2021, or, if the Court Meeting is adjourned, 48 hours prior to the time fixed for the adjourned Court Meeting (excluding any part of such 48-hour period falling on a non-working day). If the blue form of proxy is not lodged by this time, it may be emailed to post_proxy_deadline_court_votes@linkgroup.co.uk at any time prior to the commencement of the Court Meeting.


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(3)

In order to be valid, the yellow form of proxy for the General Meeting must be received by 2:15 p.m. (London time) on April 21, 2021 or, if the General Meeting is adjourned, 48-hours prior to the time fixed for the adjourned General Meeting (excluding any part of such 48 hour period falling on a non-working day).

(4)

If either the Court Meeting or the General Meeting is adjourned, the Voting Record Time for the relevant adjourned meeting will be 6:00 p.m. (London time) on the day which is two business days prior to the date of the adjourned meeting.

(5)

To commence at 2:15 p.m. (London time) or as soon thereafter as the Court Meeting concludes or is adjourned.

(6)

Holders of GW ADSs at this time will be entitled to the ADS deliverables.


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TABLE OF CONTENTS

 

     Page  

QUESTIONS AND ANSWERS ABOUT THE TRANSACTION AND SHAREHOLDER MEETINGS

     1  

SUMMARY

     16  

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

     26  

RISK FACTORS

     28  

Risks Relating to the Transaction

     28  

Risks Relating to the Combined Company Following the Transaction

     31  

SCHEME PROPOSAL AND THE COURT MEETING AND THE GENERAL MEETING—EXPLANATORY STATEMENT

     33  

THE GENERAL MEETING

     49  

Proposal 1—Scheme Implementation Proposal

     49  

Proposal 2—Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements

     51  

THE PARTIES TO THE TRANSACTION

     52  

THE TRANSACTION

     53  

Overview

     53  

Background of the Transaction

     53  

Recommendation of the GW Board; GW’s Reasons for the Transaction

     62  

Opinions of Financial Advisors of GW

     67  

Certain GW Forecasts

     81  

Financing of the Transaction

     85  

Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction

     87  

GW ADSs

     93  

Regulatory and Court Approvals Required for the Transaction

     94  

Accounting Treatment

     94  

Exemption from the Registration Requirements of the Securities Act of 1933

     94  

Delisting and Deregistration of GW ADSs; Listing of Jazz Ordinary Shares

     95  

No Appraisal or Dissenters’ Rights

     95  

THE TRANSACTION AGREEMENT

     96  

Explanatory Note Regarding the Transaction Agreement

     96  

Structure of the Transaction

     96  

Closing and Effective Time

     96  

Scheme Deliverables to GW Shareholders

     97  

Treatment of Equity and Equity-Based Awards

     98  

Exchange of GW Ordinary Shares

     99  

Representations and Warranties

     99  

Covenants Regarding Conduct of Business by GW Pending the Effective Time

     102  

Efforts to Complete the Transaction

     106  

Efforts to Implement the Scheme of Arrangement

     107  

No Solicitation; Change in Board Recommendation

     108  

Financing of the Transaction

     111  

Indemnification

     113  

Employee Benefits Matters

     113  

Additional Agreements

     114  

Conditions to Complete the Transaction

     115  

Termination of the Transaction Agreement

     116  

Termination Fees and Expenses

     117  

Withholding Taxes

     118  

Amendments and Waivers

     119  

Governing Law

     119  

Specific Enforcement

     119  

THE SCHEME OF ARRANGEMENT

     120  

 

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QUESTIONS AND ANSWERS ABOUT THE TRANSACTION AND SHAREHOLDER MEETINGS

The following questions and answers are intended to briefly address some commonly asked questions regarding the Transaction, the Transaction Agreement and the Shareholder Meetings. These questions and answers may not address all questions that may be important to you as a GW shareholder. Please refer to the section entitled “Summary” beginning on page 16 of this proxy statement and the more detailed information contained elsewhere in this proxy statement, the annexes to this proxy statement and the documents referred to in this proxy statement, which you should read carefully and in their entirety. You may obtain the information incorporated by reference into this proxy statement without charge by following the instructions under the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement.

 

Q:

Why am I receiving this proxy statement?

 

A:

On February 3, 2021, GW, Jazz and Bidco entered into the Transaction Agreement, pursuant to which Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) will acquire the entire issued and to be issued share capital of GW. The Transaction will be implemented by means of the Scheme of Arrangement, which is a court-sanctioned scheme of arrangement under Part 26 of the Companies Act.

The Transaction is conditional on, among other things, GW shareholders approving the Scheme Proposal at the Court Meeting and the Scheme Implementation Proposal at the General Meeting. In order for the Transaction to proceed, it is therefore very important that you vote at both the Court Meeting and the General Meeting. As set out elsewhere in this proxy statement, the GW Board unanimously recommends that you vote in favor of the resolutions at the Court Meeting and the General Meeting. Instructions on how to vote are set out beginning on page 42, in the case of GW ADS holders, and 46, in the case of GW ordinary shareholders, of this proxy statement.

We have included in this proxy statement important information about the Transaction, the Transaction Agreement (a copy of which is included as Annex A to this proxy statement) and the Shareholder Meetings. You should read this information carefully and in its entirety. The enclosed forms of proxy (for registered holders of GW ordinary shares) and voting instruction cards (for registered holders of GW ADSs) will allow GW shareholders to vote at the Shareholder Meetings without attending remotely.

After completion of the Transaction, GW will be an indirect wholly owned subsidiary of Jazz, the GW ADSs will be delisted from Nasdaq and deregistered under the Exchange Act, and GW will no longer be required to file periodic reports with the SEC.

 

Q:

What is the Scheme of Arrangement?

 

A:

A “scheme of arrangement” is a court-sanctioned arrangement between an English company (such as GW) and its shareholders under Part 26 of the Companies Act, which can be used as a transaction structure to effect an acquisition, takeover or other business combination. A scheme of arrangement enables a buyer to acquire the entire issued share capital of a target company if the scheme of arrangement has been approved by the requisite majorities of the target company’s shareholders and the scheme of arrangement has been sanctioned by the Court.

The Transaction will be completed by means of the Scheme of Arrangement, a copy of which is included in this proxy statement beginning on page 120, which will enable Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) to acquire the outstanding GW ordinary shares. In order to be effected, the Scheme of Arrangement requires the approval of the requisite majorities of GW shareholders and the sanction of the Court. The Scheme of Arrangement and the votes required by the GW shareholders to approve the Scheme of Arrangement are further described under the section entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” beginning on page 33 of this proxy statement.

 

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Q:

What will I receive if the Transaction is completed?

 

A:

If the Transaction is completed:

 

   

all GW ordinary shares will be acquired by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee);

 

   

holders of GW ordinary shares as of the record time for the Scheme of Arrangement will have the right to receive, for each GW ordinary share held by them at such time, the scheme deliverables, consisting of an amount equal to $16.6623 in cash plus an amount of Jazz ordinary shares equal to the exchange ratio; and

 

   

accordingly, holders of GW ADSs as of the effective time will have the right to receive, for each GW ADS, an amount equal to $200 in cash (less the GW ADS Fees and any applicable withholding taxes) plus an amount of Jazz ordinary shares equal to 12 times the share deliverable.

You will not have any rights with respect to your GW ordinary shares and/or GW ADSs after the completion of the Transaction other than the right to receive the applicable transaction deliverables.

The cash consideration is denominated in US dollars. However, a Currency Conversion Facility is being made available to registered holders of GW ordinary shares (other than the Depositary) pursuant to which they will be able to elect (subject to the terms and conditions of the Currency Conversion Facility) to receive the cash consideration in British pounds at the Average Market Exchange Rate obtained by Bidco through one or more market transactions over one or more business days following the Scheme Record Time before the relevant payment date. No Currency Conversion Facility will be made available to holders of GW ADSs. See the sections entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” and “Notes for Making Currency Elections” beginning on pages 33 and 165, respectively, of this proxy statement for further information.

 

Q:

What is the exchange ratio?

 

A:

The exchange ratio is used to determine the number of Jazz ordinary shares that GW shareholders will be entitled to receive for each GW ordinary share or GW ADS, as applicable, they hold.

The “exchange ratio” will be determined as follows:

 

   

if the Jazz average share price (which is defined as the volume weighted average sales price of the Jazz ordinary shares for the consecutive period of 15 trading days beginning at 9:30 a.m. New York time on the 18th trading day immediately preceding the closing date and concluding at 4:00 p.m. New York time on the fourth trading day immediately preceding the closing date, as calculated by Bloomberg L.P.) is greater than $139.72 but less than $170.76, the exchange ratio will be equal to the quotient obtained by dividing (x) $1.6623 by (y) the Jazz average share price, rounded to the nearest millionth of a share (corresponding to a per ADS share deliverable equal to an amount of Jazz ordinary shares equal to the quotient obtained by dividing (x) $20.00 by (y) the Jazz average share price);

 

   

if the Jazz average share price is equal to or less than $139.72, the exchange ratio will be 0.011929 (corresponding to a per ADS share deliverable of 0.143148 Jazz ordinary shares); and

 

   

if the Jazz average share price is equal to or greater than $170.76, the exchange ratio will be 0.009760 (corresponding to a per ADS share deliverable of 0.117120 Jazz ordinary shares).

Accordingly, the actual number of Jazz ordinary shares and the value of Jazz ordinary shares delivered to holders of GW ordinary shares (and, in consequence, to holders of GW ADSs) will depend on the Jazz average share price, and you will not be able to ascertain the precise value of the stock component of the transaction deliverables at the time you vote at the Shareholder Meetings. Jazz ordinary shares are traded on Nasdaq under the trading symbol “JAZZ” and we encourage you to obtain current market quotations for the Jazz ordinary shares, given that part of the scheme deliverables and ADS deliverables are made up of Jazz ordinary shares.

 

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Based on the closing price of Jazz ordinary shares on Nasdaq on March 12, 2021, the last trading day before the date of this proxy statement, and assuming that such price was to be the Jazz average share price, the applicable exchange ratio would be 0.009949 and the aggregate value of the scheme deliverables would be $18.3313 for each GW ordinary share and the aggregate value of the ADS deliverables would be $220.00 for each GW ADS (less applicable GW ADS Fees and any applicable withholding taxes). Therefore, if you hold, for example, 10 GW ADSs (which corresponds to 120 GW ordinary shares), you would receive: (i) $2,000.00 (being an amount equal to $200.00 per GW ADS (or $16.6623 per GW ordinary share)) in cash; plus (ii) 1 Jazz ordinary share (being an amount of Jazz ordinary shares equal to the share deliverable times 12 per GW ADS (or equal to the exchange ratio per GW ordinary share)) plus cash in lieu of the 0.19388 fractional Jazz ordinary share to which you would otherwise have been entitled; less (iii) if you are a GW ADS holder only, $1.00 (being the GW ADS Fees in respect of 10 GW ADSs, assuming there are no other such GW ADS Fees) and any applicable withholding taxes.

We urge you to obtain current market quotations of Jazz ordinary shares.

 

Q:

What happens if I am eligible to receive a fraction of a Jazz ordinary share pursuant to the Transaction?

 

A:

Holders of GW ordinary shares will not receive any fractional Jazz ordinary shares pursuant to the Transaction. Instead, fractional shares to which holders of GW ordinary shares would otherwise be entitled will be aggregated and sold in the market by the exchange agent, with the net proceeds of any such sale (after deduction of the expenses of the sale, including taxes) distributed in cash in due proportion to the fractional shares to which such shareholder would otherwise have been entitled, without interest and subject to any required tax withholding.

If reasonably practicable, unless other arrangements are reasonably acceptable to GW, Bidco and Jazz, GW ADSs will be treated by the Depositary, as closely as reasonably possible, in the same manner as GW ordinary shares are treated by the exchange agent with respect to the treatment of fractional shares.

See the sections entitled “The Transaction Agreement—Scheme Deliverables to GW Shareholders” and “The Transaction Agreement—Exchange of GW Ordinary Shares” beginning on pages 97 and 99, respectively, of this proxy statement.

 

Q:

What is the Currency Conversion Facility?

 

A:

The cash consideration is denominated in US dollars. However, a Currency Conversion Facility is being made available to registered holders of GW ordinary shares (other than the Depositary) pursuant to which they will be able to elect (subject to the terms and conditions of the Currency Conversion Facility) to receive the cash consideration in British pounds at the Average Market Exchange Rate obtained by Bidco through one or more market transactions over one or more business days following the Scheme Record Time before the relevant payment date. No Currency Conversion Facility will be made available to holders of GW ADSs. See the sections entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” and “Notes for Making Currency Elections” beginning on pages 33 and 165, respectively, of this proxy statement for further information.

 

Q:

What will holders of GW equity compensation awards receive if the Transaction is completed?

 

A:

At the effective time, subject to all required withholding taxes:

Each outstanding option to purchase GW ordinary shares or GW ADSs (each, a “Share Option”) granted before the date of the Transaction Agreement (each, a “Pre-2021 Share Option”) and each Share Option granted following the date of the Transaction Agreement to GW’s non-employee directors that is outstanding immediately prior to the effective time, to the extent unvested, will be deemed to be fully vested

 

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and each such Share Option will be exercised automatically at the effective time and the holder will be entitled to receive, in full satisfaction of their rights in respect of such Share Option, an amount in cash, without interest, equal to the product of (x) the number of GW ADSs underlying such Share Option (or if such Share Option is in respect of GW ordinary shares, the number of GW ordinary shares divided by 12 (rounded up to the nearest whole number)) and (y) the excess (if any) of the Value of the scheme deliverables over the per share exercise price of each Share Option (or, if the share exercise price is in respect of GW ordinary shares, the share exercise price multiplied by 12). For this purpose, the “Value” means the sum of (i) the product of (A) the per ADS share deliverable multiplied by (B) the opening price on Nasdaq of a Jazz ordinary share on the closing date of the Transaction and (ii) the per ADS cash consideration.

Each Share Option granted to GW’s employees following the date of the Transaction Agreement (each, a “2021 Share Option”) outstanding immediately prior to the effective time, whether vested or unvested, will become vested as to one-third of the 2021 Share Option at the effective time and will be treated in accordance with the previous paragraph. The remaining two-thirds of such 2021 Share Option will cease to represent a right to acquire the GW ADSs and will be converted automatically into an option to acquire Jazz ordinary shares (a “Jazz Option”), half of which will vest on the first anniversary of the original grant date and half of which will vest on the second anniversary of the original grant date, subject to accelerated vesting in connection with qualifying terminations of employment. The number of Jazz ordinary shares subject to each such Jazz Option will be equal to the product of (x) the number of GW ADSs underlying such two-thirds of 2021 Share Option immediately prior to the effective time multiplied by (y) the GW option exchange ratio, and rounding such product down to the nearest whole share. The per share exercise price for each such Jazz Option will be determined by dividing: (A) the per share exercise price for the GW ADSs underlying such 2021 Share Option immediately prior to the effective time; by (B) the GW option exchange ratio (and rounding such quotient up to the nearest whole cent). Any outstanding 2021 Share Option that is, as of immediately prior to the effective time, subject to performance-based vesting, will be deemed to have fully satisfied all applicable performance goals such that the corresponding Jazz Option will only continue to vest over the remaining service-vesting schedule. For the purposes of the foregoing, the “GW option exchange ratio” is equal to the sum of (A) the per ADS share deliverable plus (B) the per ADS cash consideration divided by the Jazz average share price.

 

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Q:

What are GW shareholders being asked to consider and approve?

 

A.

GW shareholders are being asked to consider and approve the following resolutions at the Shareholder Meetings:

 

Proposal

 

Description

  GW Board

Recommendation

  Approval
required to
complete
the
Transaction
 

Court Meeting

     

1. Scheme Proposal

  To approve the Scheme of Arrangement.   FOR     Yes  

General Meeting

     
1. Scheme Implementation Proposal   To (i) authorize the GW Board to take all action necessary or appropriate for carrying the Scheme of Arrangement into effect and (ii) make certain amendments to the GW Articles in order to facilitate the Transaction, including provisions to ensure that any GW ordinary shares that are issued at or after the Voting Record Time will either be subject to the terms of the Scheme of Arrangement or will be acquired by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) on the same terms as under the Scheme of Arrangement.   FOR     Yes  
2. Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements   To approve, on an advisory, non-binding basis, the compensation that may be paid or become payable to GW’s named executive officers in connection with the Transaction, as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of this proxy statement, including the associated narrative discussion, and the agreements or understandings pursuant to which such compensation may be paid or become payable.   FOR     No  

The Transaction cannot be completed unless each of the Scheme Proposal and the Scheme Implementation Proposal is passed. Each copy of this proxy statement mailed to registered holders of GW ordinary shares is accompanied by two forms of proxy with instructions for voting.

For registered holders of GW ordinary shares, the blue form of proxy corresponds to the Court Meeting and the yellow form of proxy corresponds to the General Meeting. The Depositary will mail to registered holders of GW ADSs as of the GW ADS Voting Record Time (i) a Depositary Notice of Court Meeting and General Meeting for GW Pharmaceuticals plc, (ii) a voting instruction card and (iii) this proxy statement. You are encouraged to submit a proxy (by post, online or electronically through CREST) or voting instructions for each of the Court Meeting and the General Meeting as soon as possible. If you hold GW ordinary shares or GW ADSs indirectly through a broker, bank, trust company or other nominee you must rely on the procedures of such broker, bank, trust company or other nominee in order to submit your voting instructions for both the Court Meeting and the General Meeting. Providing voting instructions via a broker, bank, trust company or other nominee may require the provision of information by a particular deadline, well in advance of the deadline to submit proxies or voting instructions, and therefore you are encouraged to reach out to such broker, bank, trust company or other nominee as quickly as possible.

 

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If the Scheme of Arrangement becomes effective, it will be binding on all Scheme Shareholders, including Scheme Shareholders who vote against the Scheme Proposal and the Scheme Implementation Proposal.

 

Q:

How does the GW Board recommend that I vote at the Shareholder Meetings?

 

A:

The GW Board unanimously recommends that GW shareholders vote “FOR” the Scheme Proposal at the Court meeting, “FOR” the Scheme Implementation Proposal at the General Meeting and “FOR” the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements at the General Meeting. See the section entitled “The Transaction—Recommendation of the GW Board; GW’s Reasons for the Transaction” beginning on page 62 of this proxy statement.

 

Q:

What are the Shareholder Meetings?

 

A:

GW is holding two separate GW shareholder meetings in connection with the Transaction:

Court Meeting: In order for the Scheme of Arrangement to become effective, the Scheme of Arrangement must be approved by the requisite majorities of Scheme Shareholders. This approval is to be obtained at the Court Meeting, which is convened with the permission of the Court. The purpose of the Court Meeting is to allow the Court to ascertain whether Scheme Shareholders are in favor of the Scheme of Arrangement.

General Meeting: In addition to the approval of the Scheme of Arrangement at the Court Meeting, certain additional resolutions regarding the Transaction are proposed to be approved at the General Meeting.

 

Q:

When and where are the Court Meeting and the General Meeting?

 

A:

The Court Meeting will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom on April 23, 2021 at 2:00 p.m. (London time). The General Meeting will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom on April 23, 2021 at 2:15 p.m. (London time) (or as soon thereafter as the Court Meeting shall have been concluded or adjourned).

At the time of mailing of this proxy statement, the UK Government has prohibited large public gatherings, except in certain limited circumstances. In light of these measures, together with the uncertainty as to any additional and/or alternative measures that may be put in place by the UK Government, and in order to protect the health and safety of the GW shareholders and GW directors, officers and employees, GW shareholders will not be permitted to attend the Shareholder Meetings in person, except for the Chair of the Shareholder Meetings and anyone else nominated by the Chair of the Shareholder Meetings. However, holders of GW ordinary shares will be able to attend, submit questions and vote at each Shareholder Meeting remotely via the Virtual Meeting Platform as described in the notices of meeting attached to this proxy statement. GW ordinary shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW ordinary shareholders to be seen and heard through an audio visual link during the course of the Shareholder Meetings if they would prefer to do so.

GW shareholders are strongly encouraged to appoint the Chair of the Shareholder Meetings as their proxy. If any other person is appointed as proxy, he or she will not be permitted to attend the relevant meeting in person, but will be able to attend, submit questions and vote at the relevant meeting remotely via the Virtual Meeting Platform, further details of which are set out below and in the Virtual Meeting Guide.

 

Q:

What are “Scheme Shares”, “Scheme Shareholders” and the “Scheme Record Time”?

 

A:

Under the Scheme of Arrangement:

“Scheme Shares” are the GW ordinary shares:

 

   

in issue at the date of this proxy statement;

 

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(if any) issued after the date of this proxy statement and prior to the Voting Record Time;

 

   

(if any) issued at or after the Voting Record Time and prior to the Scheme Record Time, either on terms that the original or any subsequent holders thereof shall be bound by the Scheme of Arrangement or in respect of which the holders thereof shall have agreed in writing to be bound by the Scheme of Arrangement;

in each case, remaining in issue at the Scheme Record Time, but excluding (i) any GW ordinary shares which are registered in the name of or beneficially owned by any member of the Bidco Group or by any of their respective nominees and (ii) any GW ordinary shares held in treasury by GW.

“Scheme Shareholders” are the holders of Scheme Shares whose names appear in the register of members of GW at the Scheme Record Time.

The “Scheme Record Time” is expected to be 6:00 p.m. (London time) on the business day immediately prior to the effective time.

Accordingly, if you are a registered holder of GW ordinary shares and do not sell your shares prior to the Scheme Record Time, your GW ordinary shares will be Scheme Shares and you will be a Scheme Shareholder.

 

Q:

What is the Voting Record Time? What is the GW ADS Voting Record Time?

 

A:

The holders of GW ordinary shares that will be entitled to vote at the Shareholder Meetings are those listed in GW’s register of members as of the Voting Record Time, which is 6:00 p.m. (London time) on April 21, 2021, or, if either Shareholder Meeting is adjourned, 6:00 p.m. (London time) on the day which is two business days prior to the date of the adjourned meeting.

The holders of GW ADSs that will be entitled to provide voting instructions to the Depositary in respect of the Shareholder Meetings are those registered on the GW ADS Register as of the GW ADS Voting Record Time, which is 5:00 p.m. (New York time) on March 10, 2021.

 

Q:

Who can attend and vote at the Court Meeting and General Meeting?

 

A:

If you are a “shareholder of record”: Each GW shareholder who is entered in GW’s register of members at the Voting Record Time will be entitled to attend and vote (remotely, via the Virtual Meeting Platform) on all resolutions to be put to the Court Meeting and the General Meeting.

If either meeting is adjourned, only those GW shareholders on the register of members at 6:00 p.m. (London time) on the date which is two days (excluding non-working days) before the adjourned meeting will be entitled to attend and vote.

If you hold GW ordinary shares in street name: If you hold your GW ordinary shares through a broker, bank, trust company or other nominee, as a matter of English law your name will not be entered in GW’s register of members. You will need to contact your broker, bank, trust company or other nominee in order to submit your voting instructions for both the Court Meeting and the General Meeting. Providing voting instructions via a broker, bank, trust company or other nominee may require the provision of information by a particular deadline, well in advance of the deadline to submit proxies or voting instructions, and therefore you are encouraged to reach out to such broker, bank, trust company or other nominee as quickly as possible.

If you wish to vote directly (whether remotely or by proxy) (i.e., in your own name) at the Court Meeting or General Meeting, you must complete a stock transfer request form in respect of such GW ordinary shares, pay any related UK stamp duty, if applicable, and return the completed stock transfer request form and related documentation to GW’s transfer agent, Link Group, prior to the Voting Record Time. Such holders that wish to vote directly at the Court Meeting or General Meeting should take care to complete and return a stock transfer request form in respect of their GW ordinary shares to permit processing to be completed by Link Group prior to the Voting Record Time.

 

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If you are a GW ADS holder of record: GW ADS holders are not entitled to vote directly on the resolutions at the Court Meeting or the General Meeting. Instead, GW ADS holders on the GW ADS Register at the GW ADS Voting Record Time will be eligible to provide the Depositary with voting instructions for the Shareholder Meetings as long as those instructions are received no later than 10:00 a.m. (New York time) on April 19, 2021, or if the Shareholder Meetings are adjourned, such later date as may be notified by the Depositary.

If you hold GW ADSs in “street name”: If you hold GW ADSs indirectly through a broker, bank, trust company or other nominee you must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a GW ADS holder to issue voting instructions to the Depositary. If this applies to you, we encourage you to consult your broker, bank, trust company or other nominee as soon as possible.

 

Q:

Can a GW ADS holder vote directly at the Court Meeting or General Meeting?

 

A:

If you are a GW ADS holder and you wish to vote directly (whether remotely or by proxy) at the Court Meeting or the General Meeting, you must elect to become a shareholder of record by surrendering your GW ADSs to the Depositary in exchange for the GW ordinary shares represented by those GW ADSs, in accordance with the terms and conditions of the Deposit Agreement, so as to become a registered holder of GW ordinary shares prior to the Voting Record Time. In order to surrender your GW ADSs and withdraw the underlying GW ordinary shares:

 

   

if you are a registered holder of GW ADSs, you should follow the steps described under “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” beginning on page 33 of this proxy statement; and

 

   

if you hold GW ADSs indirectly through a broker, bank, trust company or other nominee, you should contact your broker, bank, trust company or nominee to make the necessary arrangements to ensure the necessary processing can be completed in time.

 

Q:

What is the quorum requirement of the General Meeting?

 

A:

The presence at the General Meeting of two members present, in person (including remotely via the Virtual Meeting Platform) or by proxy or corporate representative, who represent at least one-third of the voting rights of all the members entitled to attend and vote on the business to be transacted at the General Meeting is necessary to constitute a quorum.

 

Q:

What is the required vote for each Proposal?

 

A:

The Scheme Proposal must be approved by a simple majority in number of GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy, representing at least 75% in value of the GW ordinary shares in respect of which a vote has been cast. This dual majority is intended to provide protection to both majority and minority shareholders of record of GW.

If you are a GW ADS holder it is the underlying GW ordinary shares voted by the Depositary at your direction which will be counted for the purposes of the above tests. While all of the GW ordinary shares voted by the Depositary will count towards the 75% in value test, it is important to be aware that, because the Depositary’s nominee is the registered holder of the GW ordinary shares underlying your GW ADSs, you will not yourself be counted towards the majority in number test. Accordingly, if you wish to be counted towards the majority in number test you must elect to become a shareholder of record by surrendering at least one of your GW ADSs to the Depositary in exchange for the GW ordinary shares represented by those GW ADSs, in accordance with the terms and conditions of the Deposit Agreement, so as to become a registered holder of GW ordinary shares prior to the Voting Record Time.

 

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The Scheme Implementation Proposal must be approved by at least 75% of the votes cast by GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy.

The Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements must be approved by a simple majority of the votes cast by GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy.

 

Q:

What happens if I sell my GW ordinary shares or GW ADSs before completion of the Transaction?

 

A:

If you are a holder of GW ordinary shares, in order to receive the scheme deliverables for your GW ordinary shares, you must hold your GW ordinary shares at the Scheme Record Time. Consequently, if you transfer your GW ordinary shares before the Scheme Record Time, you will have transferred your right to receive the scheme deliverables if the Transaction is completed.

The Voting Record Time and GW ADS Voting Record Time, which determine the GW ordinary shareholders entitled to vote at the Shareholder Meetings and GW ADS holders entitled to provide voting instructions to the Depositary in accordance with the terms of the Deposit Agreement, respectively, are earlier than the Scheme Record Time. If you are a holder of GW ordinary shares and you transfer your GW ordinary shares after the Voting Record Time but prior to the Scheme Record Time, you will retain any rights you hold to vote at the Shareholder Meetings but will not have the right to receive the scheme deliverables.

If you are a GW ADS holder, in order to receive the ADS deliverables for your GW ADSs, you must not have sold your GW ADSs prior to the effective time (including not having sold prior to the effective time in trades that will settle after the effective time). Consequently, if you transfer your GW ADSs before the effective time, you will not be entitled to receive the ADS deliverables. GW intends to instruct Nasdaq to halt trading of GW ADSs before the open of trading on the date of the Court Sanction Hearing. Accordingly, because GW expects that the last day of trading of the GW ADSs on Nasdaq will be the trading day prior to the closing date, the persons entitled to the ADS deliverables will not be known until the first trading day following the closing date, which is the date that any trades made on the trading day prior to the closing date will settle. If, however, the last day of trading of the GW ADSs on Nasdaq is the closing date, the persons entitled to the ADS deliverables will not be known until the second trading day following the closing date, which is the date that any trades made on the closing date will settle.

 

Q:

Does my vote matter?

 

A:

Yes. It is important that eligible GW shareholders vote at both of the Shareholder Meetings and that holders of GW ADSs issue voting instructions to the Depositary to vote at both of the Shareholder Meetings on their behalf.

The Transaction cannot be completed unless the Scheme Proposal is approved at the Court Meeting and the Scheme Implementation Proposal is approved at the General Meeting.

 

Q:

What do I need to do now?

 

A:

If you are a shareholder of record: If you hold GW ordinary shares registered in your own name, you are entitled to attend the Court Meeting and the General Meeting to vote either remotely or to appoint another person or persons as your proxy or proxies to attend and vote on your behalf, in accordance with the procedures further outlined in this proxy statement. You are strongly encouraged to appoint the Chair of the Shareholder Meetings as your proxy. Only directors of GW will be permitted to attend in person. If any other person is appointed as proxy, he or she will not be permitted to attend the Shareholder Meetings in person, but will be able to attend, submit questions and vote at the Shareholder Meetings remotely via the Virtual Meeting Platform. GW ordinary shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW ordinary shareholders to be seen and heard through an audio visual link during the course of the Shareholder Meetings if they would prefer to do so.

 

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If you hold GW ordinary shares in “street name”: Holders of GW ordinary shares who hold their GW ordinary shares indirectly through a broker, bank, trust company or other nominee must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a holder of GW ordinary shares to vote at the Shareholder Meetings. If this applies to you, we encourage you to consult your broker, bank, trust company or other nominee as soon as possible.

If you are a beneficial holder but not the legal holder of GW ordinary shares then, as a matter of English law, your name is not entered in GW’s register of members. Accordingly, if you wish to attend and vote directly (i.e., in your own name) at the Court Meeting or General Meeting, you must become a registered holder of GW ordinary shares by arranging for the completion of a stock transfer form or CREST transfer form by the applicable registered holder in respect of the GW ordinary shares that you wish to be transferred into your name, pay any related UK stamp duty, if applicable, and send the completed stock transfer form (or CREST transfer form) and related documentation (as applicable) to GW’s transfer agent, Link Group at Corporate Actions, Central Square, 29 Wellington Street, Leeds LS1 4DL, United Kingdom, prior to the Voting Record Time. Beneficial holders who wish to attend and vote directly at the Court Meeting or General Meeting should send such stock transfer form (or CREST transfer form) in respect of their GW ordinary shares to permit processing to be completed by Link Group prior to the Voting Record Time.

If either Shareholder Meeting is adjourned, only those GW shareholders on the register of members at 6:00 p.m. (London time) on the day which is two business days before the adjourned meeting will be entitled to attend and vote.

If you are a GW ADS holder: GW ADS holders are not entitled to vote directly at the Court Meeting or the General Meeting. Instead, GW ADS holders on the GW ADS Register as at the GW ADS Voting Record Time will be eligible to provide the Depositary with voting instructions for the Shareholder Meetings and will be sent a Depositary Notice of Court Meeting and General Meeting for GW Pharmaceuticals plc as well as a GW ADS voting instruction card to be completed and returned in accordance with the instructions printed thereon. The voting instructions must be received by the Depositary no later than 10:00 a.m. (New York time) on April 19, 2021, or, if either the Court Meeting or the General Meeting is adjourned, such later date as may be notified by the Depositary.

Holders of GW ADSs who hold their GW ADSs indirectly through a broker, bank, trust company or other nominee must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a GW ADS holder to issue voting instructions to the Depositary. If this applies to you, we encourage you to consult your broker, bank, trust company or other nominee as soon as possible. Please vote in accordance with the instructions sent to you by your broker, bank, trust company or other nominee as soon as possible.

The Depositary will collate all votes properly timely submitted by holders of GW ADSs and submit a vote on behalf of all such holders.

If you are a GW ADS holder and you wish to vote directly (whether remotely or by proxy) on the Scheme at the Court Meeting or the resolutions at the General Meeting, you must elect to become a shareholder of record by surrendering your GW ADSs to the Depositary to withdraw the GW ordinary shares represented by those GW ADSs, in accordance with the terms and conditions of the Deposit Agreement, so as to become a registered holder of GW ordinary shares prior to the Voting Record Time. In order to surrender your GW ADSs and withdraw the underlying GW ordinary shares if you hold GW ADSs indirectly through a broker, bank, trust company or other nominee you should contact your broker, bank, trust company or other nominee to make the necessary arrangements to ensure the necessary processing can be completed in time.

 

Q:

Why did I receive two forms of proxy as a holder of GW ordinary shares?

 

A:

Each registered holder of GW ordinary shares has been sent a blue form of proxy for use in respect of the Court Meeting and a yellow form of proxy for use in respect of the General Meeting. If you have not received two forms of proxy, please contact Link Group at +44 371 664 0321.

 

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As an alternative to completing and returning the printed blue and yellow forms of proxy, proxies may be appointed electronically by logging on to the following website: www.signalshares.com and following the instructions therein, as further explained in the Notes to the Notices of the Shareholder Meetings.

If you hold GW ordinary shares in uncertificated form through CREST and wish to appoint a proxy or proxies for the Shareholder Meetings (or any adjournment thereof) by using the CREST electronic proxy appointment service, you may do so by using the procedures described in the CREST Manual, and as further explained in the Notes to the Notices of the Shareholder Meetings.

Your vote is very important. You are encouraged to submit a proxy card (by post, online or electronically through CREST) for BOTH the Court Meeting and the General Meeting as soon as possible.

 

Q:

What happens if I do not vote or abstain from voting?

 

A:

Holders of GW ordinary shares: If you are the registered holder of GW ordinary shares and do not vote and do not appoint another person as your proxy to remotely attend and vote on your behalf, your GW ordinary shares will not be counted for purposes of determining whether a quorum is present at the General Meeting or for calculating the proportion of votes “FOR” and “AGAINST” the Proposals at the Shareholder Meetings.

If your GW ordinary shares are held by a broker, bank, trust company or other nominee, you will need to contact your broker, bank, trust company or other nominee in order to confirm the answer to this question. However, if you do not instruct your broker, bank, trust company or other nominee how to vote your GW ordinary shares, we expect that your GW ordinary shares will not be voted by your broker, bank, trust company or other nominee on your behalf or counted for purposes of calculating the proportion of votes “FOR” and “AGAINST” the Proposals at the Shareholder Meetings.

There is a “WITHHELD” option to enable you to abstain on the Proposals at the General Meeting (but not the Court Meeting). A vote withheld will count towards the quorum at the General Meeting, however, because a vote withheld is not a vote in law, it will not be counted in the calculation of the proportion of votes “FOR” and “AGAINST” the Proposals at the General Meeting and therefore will have no effect on the outcome of the Proposals at the General Meeting.

Assuming a quorum is present at the General Meeting, failures to vote and withheld votes will have no effect on the outcome of the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements.

Holders of GW ADSs: Registered holders of GW ADSs should instruct the Depositary how to vote the GW ordinary shares underlying their GW ADSs at the Shareholder Meetings using one of the methods specified in the ADS voting instruction cards, subject to and in accordance with the terms of the Deposit Agreement.

If the Depositary does not receive timely voting instructions from a GW ADS holder, under the terms of the Deposit Agreement, such holder will be deemed to have instructed the Depositary to give a discretionary proxy to a person designated by GW to vote the GW ordinary shares underlying such holder’s GW ADSs unless, among other things, GW instructs the Depositary that it does not wish for such a proxy to be given. GW has instructed the Depositary that it does not wish for such discretionary proxy to be given if the Depositary does not receive timely voting instructions from GW ADS holders for the Shareholder Meetings. Accordingly, if the Depositary does not receive timely voting instructions from a GW ADS holder on or before 10:00 a.m. (New York time) on April 19, 2021, the GW ordinary shares underlying such holder’s GW ADSs will not be represented at the Shareholder Meetings and will not be voted at the Shareholder Meetings.

If your GW ADSs are held by a broker, bank, trust company or other nominee, you will need to contact your broker, bank, trust company or other nominee in order to confirm the answer to this question. However, if you do not instruct your broker, bank, trust company or other nominee how to vote your GW ADSs, we expect that your GW ADSs will not be voted by your broker, bank, trust company or other nominee on your

 

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behalf or counted for purposes of calculating the proportion of votes “FOR” and “AGAINST” the Proposals at the Shareholder Meetings.

A “broker non-vote” occurs when a broker, bank, trust company or other nominee returns a valid proxy but does not vote on a particular proposal because such broker, bank, trust company or other nominee does not have discretionary authority to vote on the matter and has not received specific voting instructions from the beneficial owner of such shares. GW does not expect any broker non-votes at the Shareholder Meetings because the rules applicable to brokers, banks, trust companies and other nominees only provide them with discretionary authority to vote on proposals that are considered routine, whereas the Proposals are considered non-routine.

 

Q:

Can I change or revoke my proxy or voting instructions or change my vote after I have delivered my proxy or voting instructions?

 

A:

Yes. If you are a shareholder of record of GW ordinary shares, you can do this in any of the three following ways:

 

  1.

by sending an email to shareholderenquiries@linkgroup.co.uk, at any time before the Court Meeting (in respect of the blue form of proxy) or at least 48 hours (excluding any part of such 48 hour period falling on a non-working day) before the General Meeting (in respect of the yellow form of proxy), stating that you would like to revoke your proxy;

 

  2.

by completing, signing and dating another proxy card and returning it by mail in time to be received at least 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the Court Meeting and/or General Meeting, as applicable, or by submitting a later dated proxy online or electronically via CREST to be transmitted so as to be received by GW’s Registrar not later than 48 hours (excluding any part of such 48-hour period falling on a non- working day) before the relevant Shareholder Meeting, in which case your later-submitted proxy will be recorded and your earlier proxy revoked; or

 

  3.

by virtually attending and voting your shares at the Court Meeting and/or General Meeting on the Virtual Meeting Platform.

Please note, however, that only your last validly delivered or received proxy will count (regardless of its date or of the date of its execution).

If your GW ordinary shares are held in an account by a broker, bank, trust company or other nominee and you desire to change your vote, you should contact your broker, bank, trust company or other nominee for instructions on how to do so.

If you are a registered holder of GW ADSs, you can revoke or change your previous voting instruction by delivering a revocation or modified voting instruction to the Depositary (in the manner specified by the Depositary in the applicable Depositary directions on how to vote GW ADSs) that is received by the Depositary by 10:00 a.m. (New York time) on April 19, 2021, or, if either the Court Meeting or the General Meeting is adjourned, such later date as may be notified by the Depositary. If your GW ADSs are held in an account by a broker, bank, trust company or other nominee and you desire to change your vote, you should contact your broker, bank, trust company or other nominee for instructions on how to do so.

 

Q:

How can I access the Virtual Meeting Platform?

 

A:

GW ordinary shareholders will be given the opportunity to remotely attend, submit questions and vote at the relevant Shareholder Meeting via a virtual meeting platform provided by Lumi AGM UK Limited (the “Virtual Meeting Platform”). GW ordinary shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW ordinary shareholders to be seen and heard through an audio visual link during the course of the Shareholder Meetings if they would prefer to do so.

 

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GW ordinary shareholders can access the Virtual Meeting Platform using a web browser, on a PC, smartphone device or tablet. The web browser must be compatible with the latest browser versions of Chrome, Firefox, Internet Explorer 11 (Internet Explorer v. 10 and below are not supported), Edge and Safari. To remotely attend, submit questions and/or vote using this method, please go to https://web.lumiagm.com.

Alternatively, Scheme Shareholders and GW ordinary shareholders can access the Virtual Meeting Platform by downloading the latest version of the Lumi AGM application (the “App”) onto their smartphone device or tablet. The App can be downloaded from the Google Play Store Market or the Apple® App Store by searching by the application name “Lumi AGM”. If you have previously downloaded the App, please ensure you are using the latest version by checking the status in the Google Play Store Market or the Apple® App Store. Please be aware that the App does not support Android 4.4 (or below), iOS 9 (or below) or any other operating system.

Once you have accessed https://web.lumiagm.com from your web browser, or downloaded the App, you will be asked to enter the Lumi Meeting ID which is 128-194-986. You will then be prompted to enter your unique Investor Code (“IVC”) and PIN. These can be found printed on the Attendance Card attached to the Forms of Proxy. Access to the Shareholder Meetings via the website or App will be available from 1:00 p.m. (London time) on April 23, 2021, as further detailed below.

If you are unable to access your IVC and PIN, please call Link Group between 9:00 a.m. and 5:30 p.m. (London time) Monday to Friday (except English and Welsh public holidays) at +44 (0)371 277 1020. Calls from outside the UK will be charged at the applicable international rate. Calls are charged at the standard geographic rate and will vary by provider. Please note that calls may be monitored or recorded, and Link Group cannot provide advice on the merits of the Transaction or give any financial, legal or tax advice.

Access to the Shareholder Meetings will be available from 1:00 p.m. (London time) on April 23, 2021, although the voting functionality will not be enabled until the Chair of the relevant meeting declares the poll open. GW ordinary shareholders will be permitted to submit questions (via the Virtual Meeting Platform) to the GW directors during the course of the relevant meeting. GW ordinary shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW ordinary shareholders to be seen and heard through an audio visual link during the course of the Shareholder Meetings if they would prefer to do so. The Chair of the relevant meeting will ensure that matters relating to the formal business of the meeting are addressed in the relevant meeting.

During the Shareholder Meetings, you must ensure you are connected to the Internet at all times in order to submit questions and vote when the Chair of the relevant meeting commences polling. Therefore, it is your responsibility to ensure connectivity for the duration of the Shareholder Meetings via your wireless or other Internet connection. The Virtual Meeting Guide contains further information on accessing and participating in the Shareholder Meetings remotely via the Virtual Meeting Platform and is available on GW’s Internet website at http://www.gwpharm.com/acquisition-by-jazz-pharmaceuticals. The information contained on GW’s Internet website is not incorporated into, and does not form a part of, this proxy statement or any other report or document on file with or furnished to the SEC.

If you wish to appoint a proxy and for them to attend the Shareholder Meetings on the Virtual Meeting Platform on your behalf, please contact Link Group at +44 (0)371 277 1020.

If your GW ordinary shares are held through a broker, bank, trust company or other nominee and you wish to access the Virtual Meeting Platform, you will need to contact your broker, bank, trust company or other nominee immediately. Your broker, bank, trust company or other nominee will need to have completed a letter of representation and presented this to Link Group, GW’s registrar, no later than 72 hours before the start of the meeting in order to obtain your unique login code and PIN number to access the Virtual Meeting Platform. If you are in any doubt about your shareholding, please contact Link Group at +44 (0)371 277 1020.

 

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Q:

What are the conditions to completion of the Transaction?

 

A:

In addition to the approval of the Scheme Proposal and the Scheme Implementation Proposal by GW shareholders as described above, completion of the Transaction is subject to the sanction of the Scheme of Arrangement by the Court and the satisfaction (or, to the extent permitted by applicable law, waiver) of a number of other conditions, including the receipt of required antitrust clearances, the accuracy of GW’s, Bidco’s and Jazz’s respective representations and warranties under the Transaction Agreement (subject to certain materiality exceptions) and GW’s, Bidco’s and Jazz’s performance of their respective obligations under the Transaction Agreement in all material respects. For a more complete summary of the conditions that must be satisfied or waived prior to completion of the Transaction, see the section entitled “The Transaction Agreement—Conditions to Complete the Transaction” beginning on page 115 of this proxy statement.

 

Q:

When do you expect the Transaction to be completed?

 

A:

Subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the closing conditions described under the section entitled “The Transaction Agreement—Conditions to Complete the Transaction” beginning on page 115 of this proxy statement, including the approval by GW shareholders of the Scheme Proposal and the Scheme Implementation Proposal and the sanction of the Scheme of Arrangement by the Court, GW and Jazz expect that the Transaction will be completed in the second quarter of 2021. However, it is possible that factors outside the control of both companies could result in the Transaction being completed at a different time or not at all.

 

Q:

What is the Court Sanction Hearing?

 

A:

Under the Companies Act, the Scheme of Arrangement requires the sanction of the Court before it can become effective. The Court Sanction Hearing is currently expected to be held in the second quarter of 2021. Scheme Shareholders are entitled to remotely attend the Court Sanction Hearing, should they wish to do so, in person or through counsel. Instructions for attending the Court Sanction Hearing will be publicized in due course.

Following sanction of the Scheme of Arrangement by the Court, the Scheme of Arrangement will become effective in accordance with its terms upon a copy of the Court Order being delivered to the Registrar of Companies in England and Wales.

 

Q:

What happens if the Transaction is not completed?

 

A:

If the Scheme Proposal or Scheme Implementation Proposal are not approved by GW shareholders, or if the Transaction is not completed for any other reason, GW shareholders will not receive any payment for their GW ordinary shares (and GW ADS holders will accordingly not receive any payment in respect of their GW ADSs) in connection with the Transaction. Instead, GW will remain an independent public company and GW shareholders and GW ADS holders will continue to own their GW ordinary shares and GW ADSs. The GW ADSs will continue to be registered under the Exchange Act and listed on Nasdaq. Under certain circumstances, if the Transaction is not completed, GW may be obligated to pay Bidco (or its designee) a $71.5 million termination fee. Please see the section entitled “The Transaction Agreement—Termination Fees and Expenses” beginning on page 117 of this proxy statement.

 

Q:

Should I send in my share certificates or other evidence of ownership now?

 

A:

No, do not send your share certificates now.

There is no requirement for registered GW shareholders to take any action with regard to their share certificates. Share certificates in respect of GW ordinary shares will cease to be valid upon the Scheme of Arrangement becoming effective.

 

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If you are a GW ADS holder who holds your GW ADSs in certificated form you will, after the effective time, receive a letter of transmittal with an explanation on how to surrender the ADS certificates to the Depositary. Such GW ADS holders must sign and return the letter of transmittal, together with their GW ADS certificates, to receive any ADS deliverables to which they are entitled.

If you are a GW ADS holder who holds your GW ADSs in uncertificated form, you will automatically receive any ADS deliverables to which you are entitled and do not need to take any further action.

If your GW ordinary shares or GW ADSs are held on your behalf by a broker, bank, trust company or other nominee, you may receive instructions from your broker, bank, trust company or other nominee as to what action, if any, you need to take to effect the surrender of your GW ordinary shares or GW ADSs in exchange for the scheme deliverables and the ADS deliverables, respectively.

 

Q:

Who can help answer any other questions I have?

 

A:

If you have additional questions about the Transaction, need assistance in submitting your proxy or voting your GW ordinary shares or GW ADSs or need additional copies of this proxy statement or the enclosed proxy cards:

 

   

if you hold GW ordinary shares, please contact GW’s Registrar, Link Group, by telephone at +44 371 664 0321 or GW’s proxy solicitor, D.F. King by email at gwpharma@dfkingltd.co.uk or by telephone at +44 207 920 9700; or

 

   

if you hold GW ADSs, please contact GW’s proxy solicitor, D.F. King, by email at gwpharma@dfkingltd.co.uk or by telephone at +44 207 920 9700.

 

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SUMMARY

The following summary highlights selected information in this proxy statement and may not contain all the information that may be important to you as a GW shareholder. Accordingly, we encourage you to read carefully this entire proxy statement, its annexes and the documents referred to in this proxy statement. Each item in this summary includes a page reference directing you to a more complete description of that topic. You may obtain the information incorporated by reference into this proxy statement without charge by following the instructions under the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement.

The Parties to the Transaction (page 52)

GW Pharmaceuticals plc

GW, a public limited company incorporated in England and Wales, is a global leader in discovering, developing, manufacturing and commercializing novel, regulatory approved therapeutics from its proprietary cannabinoid product platform to address a broad range of diseases. GW ADSs are listed on Nasdaq under the symbol “GWPH”.

GW’s registered offices are located at Sovereign House, Vision Park, Chivers Way, Histon, Cambridge CB24 9BZ, United Kingdom and its telephone number is +44-1223-266-800.

Jazz Pharmaceuticals Public Limited Company

Jazz, a public limited company incorporated in the Republic of Ireland, is a global biopharmaceutical company dedicated to developing and commercializing life-changing medicines with a focus in neuroscience, including sleep and movement disorders, and in oncology, including hematologic malignancies and solid tumors. Jazz ordinary shares are listed on Nasdaq under the symbol “JAZZ”.

Jazz’s executive offices are located at Fifth Floor, Waterloo Exchange, Waterloo Road, Dublin 4, Ireland D04 E5W7 and its telephone number is +353-1-634-7800.

Jazz Pharmaceuticals UK Holdings Limited

Bidco, a private limited company incorporated in England and Wales, is an indirect wholly owned subsidiary of Jazz and was formed solely for the purpose of facilitating the Transaction. Bidco has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the Transaction. If the Transaction completes, each issued and outstanding GW ordinary share will be transferred to Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee).

Bidco’s registered offices are located at Wing B, Building 5700, Spires House, John Smith Drive, Oxford Business Park South, Oxford, United Kingdom OX4 2RW and its telephone number is +44-1865-405-000.

The Transaction (page 53) and the Transaction Agreement (page 96)

On February 3, 2021, GW entered into the Transaction Agreement with Jazz and Bidco, pursuant to which Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) will, subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the conditions to the completion of the Transaction, acquire the entire issued and to be issued share capital of GW. The Transaction is to be implemented by means of the Scheme of Arrangement.



 

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The terms and conditions of the Transaction are contained in the Transaction Agreement, a copy of which is attached as Annex A to this proxy statement. We encourage you to read the Transaction Agreement carefully and in its entirety, as it is the legal document that, along with the Scheme of Arrangement, governs the Transaction.

After completion of the Transaction, GW will be an indirect wholly owned subsidiary of Jazz, the GW ADSs will be delisted from Nasdaq and deregistered under the Exchange Act, and GW will no longer be required to file periodic reports with the SEC.

Scheme Deliverables to GW Shareholders (page 97)

If the Transaction is completed:

 

   

all GW ordinary shares will be acquired by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee);

 

   

holders of GW ordinary shares as of the record time for the Scheme of Arrangement will have the right to receive for each GW ordinary share held by them at such time an amount equal to $16.6623 in cash plus an amount of Jazz ordinary shares equal to the exchange ratio; and

 

   

accordingly, holders of GW ADSs as of the effective time will have the right to receive, for each GW ADS, an amount equal to $200 in cash (less the GW ADS Fees and any applicable withholding taxes) plus an amount of Jazz ordinary shares equal to 12 times the share deliverable.

The “exchange ratio” will be determined as follows:

 

   

if the Jazz average share price is greater than $139.72 but less than $170.76, the exchange ratio will be equal to the quotient obtained by dividing (x) $1.6623 by (y) the Jazz average share price, rounded to the nearest millionth of a share (corresponding to a per ADS share deliverable equal to an amount of Jazz ordinary shares equal to the quotient obtained by dividing (x) $20.00 by (y) the Jazz average share price);

 

   

if the Jazz average share price is equal to or less than $139.72, the exchange ratio will be 0.011929 (corresponding to a per ADS share deliverable of 0.143148 Jazz ordinary shares); and

 

   

if the Jazz average share price is equal to or greater than $170.76, the exchange ratio will be 0.009760 (corresponding to a per ADS share deliverable of 0.117120 Jazz ordinary shares).

The cash consideration is denominated in US dollars. However, a Currency Conversion Facility is being made available to registered holders of GW ordinary shares (other than the Depositary) pursuant to which they will be able to elect (subject to the terms and conditions of the Currency Conversion Facility) to receive the cash consideration in British pounds at the Average Market Exchange Rate obtained by Bidco through one or more market transactions over one or more business days following the Scheme Record Time before the relevant payment date. No Currency Conversion Facility will be available to holders of GW ADSs. See the sections entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” and “Notes for Making Currency Elections” beginning on pages 33 and 165, respectively, of this proxy statement for further information.

Recommendation of the GW Board; GW’s Reasons for the Transaction (page 62)

At a meeting held on February 2, 2021, the GW Board unanimously (1) determined that the Transaction would promote the success of GW for the benefit of the GW shareholders as a whole, (2) determined that it was in the best interests of GW and the GW shareholders for GW to enter into the Transaction Agreement and consummate the Transaction and the other transactions contemplated thereby, (3) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the Transaction and the other transactions contemplated thereby and (4) resolved to recommend that GW shareholders approve the Scheme Proposal at the Court Meeting and vote in favor of the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements at the General Meeting.



 

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Opinions of Financial Advisors of GW (page 67)

Opinion of Centerview Partners LLC

GW retained Centerview Partners LLC as financial advisor to the GW Board in connection with the proposed Transaction and the other transactions contemplated by the Transaction Agreement. In connection with this engagement, the GW Board requested that Centerview evaluate the fairness, from a financial point of view, to the holders of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than (i) any GW ordinary shares legally or beneficially owned by Bidco or any member of the Bidco Group or any of their respective nominees, (ii) any GW ordinary shares held in treasury and (iii) any GW ordinary shares held by any affiliate of GW or Jazz (clauses (i), (ii) and (iii), collectively, “Excluded Shares”)) of the transaction deliverables proposed to be paid to such holders pursuant to the Transaction Agreement. On February 2, 2021, Centerview rendered to the GW Board its oral opinion, which was subsequently confirmed by delivery of a written opinion dated February 2, 2021 that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered, and qualifications and limitations upon the review undertaken by Centerview in preparing its opinion, the transaction deliverables to be paid to the holders of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than Excluded Shares) pursuant to the Transaction Agreement was fair, from a financial point of view, to such holders.

The full text of Centerview’s written opinion, dated February 2, 2021, which describes the assumptions made, procedures followed, matters considered, and qualifications and limitations upon the review undertaken by Centerview in preparing its opinion, is attached as Annex B and is incorporated herein by reference. Centerview’s financial advisory services and opinion were provided for the information and assistance of the GW Board (in the directors’ capacity as directors and not in any other capacity) in connection with and for purposes of its consideration of the Transaction and Centerview’s opinion addressed only the fairness, from a financial point of view, as of the date thereof, to the holders of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than Excluded Shares) of the transaction deliverables to be paid to such holders pursuant to the Transaction Agreement. Centerview’s opinion did not address any other term or aspect of the Transaction Agreement or the Transaction and does not constitute a recommendation to any shareholder of GW or any other person as to how such shareholder or other person should vote with respect to the Transaction or otherwise act with respect to the Transaction or any other matter.

The full text of Centerview’s written opinion should be read carefully in its entirety for a description of the assumptions made, procedures followed, matters considered, and qualifications and limitations upon the review undertaken by Centerview in preparing its opinion.

In connection with Centerview’s services as financial advisor to the GW Board, GW has agreed to pay Centerview an aggregate fee of approximately $36 million, $1.5 million of which was payable upon execution of the Transaction Agreement and the remainder of which is payable contingent upon consummation of the Transaction.

Opinion of Goldman Sachs & Co. LLC

Goldman Sachs & Co. LLC rendered its oral opinion to the GW Board, which was subsequently confirmed by delivery of a written opinion dated February 3, 2021, that, as of such date and based upon and subject to the factors and assumptions set forth therein, the transaction deliverables to be paid to the holders (other than Jazz and its affiliates) of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) pursuant to the Transaction Agreement was fair from a financial point of view to such holders.

The full text of the written opinion of Goldman Sachs, dated February 3, 2021, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the



 

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opinion, is attached as Annex C. Goldman Sachs provided advisory services and its opinion for the information and assistance of the GW Board in connection with its consideration of the Transaction. The Goldman Sachs opinion is not a recommendation as to how any holder of GW ordinary shares should vote with respect to the Transaction or any other matter. Pursuant to an engagement letter between GW and Goldman Sachs, GW has agreed to pay Goldman Sachs a transaction fee of approximately $36 million, $1.5 million of which became payable at announcement of the Transaction, and the remainder of which is contingent upon consummation of the Transaction.

The Court Meeting (page 33) and the General Meeting (page 49)

The Court Meeting will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom on April 23, 2021 at 2:00 p.m. (London time) and the General Meeting will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom on April 23, 2021 at 2:15 p.m. (London time) (or as soon thereafter as the Court Meeting shall have been concluded or adjourned).

At the Court Meeting, GW shareholders are being asked to consider and vote on:

 

  1.

Scheme Proposal: To approve and give effect to the Scheme of Arrangement (see the section entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” beginning on page 33 of this proxy statement).

At the General Meeting, GW shareholders are being asked to consider and vote on:

 

  1.

Scheme Implementation Proposal: To (i) authorize the GW Board to take all action necessary or appropriate for carrying the Scheme of Arrangement into effect and (ii) make certain amendments to the GW Articles in order to facilitate the Transaction (see the section entitled “The General Meeting—Proposal 1—Scheme Implementation Proposal” beginning on page 49 of this proxy statement).

 

  2.

Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements: To approve, in accordance with Section 14A of the Exchange Act, on an advisory, non-binding basis, the compensation that may be paid or become payable to GW’s named executive officers in connection with the Transaction, as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of this proxy statement, including the associated narrative discussion, and the agreements or understandings pursuant to which such compensation may be paid or become payable (see the section entitled “The General Meeting—Proposal 2—Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements” beginning on page 51 of this proxy statement).

The GW Board unanimously recommends that GW shareholders vote “FOR” the Scheme Proposal, “FOR” the Scheme Implementation Proposal and “FOR” the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements. For a more complete description of the recommendation of the GW Board with respect to the Proposals, see the section entitled “The Transaction—Recommendation of the GW Board; GW’s Reasons for the Transaction” beginning on page 62 of this proxy statement.

Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction (page 87)

In considering the recommendation of the GW Board, you should be aware that directors and executive officers of GW may have certain interests in the Transaction that may be different from, or in addition to, the interests of GW shareholders generally. The members of the GW Board were aware of and considered these interests in reaching the determination to approve the Transaction Agreement and recommend to the GW shareholders that they vote to approve the Proposals. These interests include:

 

   

each Pre-2021 Share Option and each Share Option granted following the date of the Transaction Agreement to GW’s non-employee directors will fully vest (with any performance goals deemed fully satisfied as of the effective time) and will be exercised automatically and cash-settled upon the



 

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effective time (as described in the section entitled “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on page 87 of this proxy statement);

 

   

each 2021 Share Option will become vested and will be exercised automatically and cash-settled as to one-third of the grant at the effective time, and the remaining two-thirds of the grant will be converted into an option to acquire Jazz ordinary shares (with any performance goals deemed fully satisfied as of the effective time and, therefore, converting into time vesting Jazz Options), half of which will vest on the first anniversary of the original grant date and half of which will vest on the second anniversary of the original grant date, subject to accelerated vesting in connection with qualifying terminations of employment (as described in the section entitled “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on page 87 of this proxy statement);

 

   

each of GW’s executive officers participates in GW Severance Plans (as defined in the section entitled “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on page 87 of this proxy statement), which provide severance and other benefits in the case of a qualifying termination of employment in connection with or following a change of control of GW, which will include the completion of the Transaction;

 

   

certain executive officers will be eligible to receive transition incentive bonuses in connection with service during a critical integration period following the effective time; and

 

   

GW’s directors and officers are entitled to continued indemnification and insurance coverage under the Transaction Agreement.

See the section entitled “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on page 87 of this proxy statement for further information regarding these interests.

Regulatory and Court Approvals Required for the Transaction (page 94)

Completion of the Transaction is conditional on, among other things, (i) required antitrust clearances and (ii) the sanction of the Scheme of Arrangement by the Court.

Conditions to Complete the Transaction (page 115)

The respective obligations of GW, Bidco and Jazz to complete the Transaction are subject to the satisfaction (or to the extent permitted by law, waiver) of the following conditions:

 

  i.

the receipt of the required GW shareholder approvals;

 

  ii.

the sanction of the Scheme of Arrangement by the Court;

 

  iii.

the absence of any order issued by any court or other governmental authority of competent jurisdiction that remains in effect and enjoins, prevents or prohibits the completion of the Transaction;

 

  iv.

the absence of any applicable law enacted, entered, promulgated or enforced by any governmental authority that remains in effect and prohibits or makes illegal completion of the Transaction;

 

  v.

the Jazz ordinary shares to be delivered to GW shareholders in connection with the Transaction being approved for listing on Nasdaq; and

 

  vi.

the expiration or termination of any waiting period applicable to the Transaction under the HSR Act and any applicable waiting period or consent under the foreign antitrust laws relating to the Transaction shall have expired, been terminated, or been obtained, as applicable (this condition, together with the conditions described in clauses (iii) and (iv) above, if they relate to antitrust laws, the “antitrust conditions”).



 

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The obligation of GW to complete the Transaction is subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the following additional conditions:

 

  i.

Jazz and Bidco each having performed, in all material respects, all of their respective obligations required to be performed by Jazz and Bidco at or prior to the closing of the Transaction;

 

  ii.

the representations and warranties of Jazz and Bidco being true and correct to the extent specified in the Transaction Agreement, including that no Material Adverse Effect with respect to Jazz has occurred since September 30, 2020 (see the section entitled “The Transaction Agreement—Representations and Warranties” beginning on page 99 of this proxy statement for more information on “Material Adverse Effect”); and

 

  iii.

the receipt of a certificate from an executive officer of Jazz confirming, on behalf of both Jazz and Bidco, the satisfaction of the conditions set forth in the immediately preceding two clauses.

The obligation of Jazz and Bidco to complete the Transaction is subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the following additional conditions:

 

  i.

GW having performed, in all material respects, all of its obligations required to be performed by it at or prior to the closing;

 

  ii.

the representations and warranties of GW being true and correct to the extent specified in the Transaction Agreement, including that no Material Adverse Effect with respect to GW has occurred since September 30, 2020; and

 

  iii.

the receipt of a certificate from an executive officer of GW confirming the satisfaction of the conditions set forth in the immediately preceding two clauses.

Financing of the Transaction (pages 85 and 111)

In connection with the Transaction, Jazz has entered into an amended and restated commitment letter, dated February 19, 2021 (the “debt commitment letter”), from Bank of America, N.A., BofA Securities, Inc., JPMorgan Chase Bank, N.A., Barclays Bank PLC, Citigroup Global Markets Inc., Credit Suisse Loan Funding LLC, Credit Suisse AG, Cayman Islands Branch, DNB (UK) Ltd., MUFG Bank, Ltd., Royal Bank of Canada, Sumitomo Mitsui Banking Corporation, Truist Bank, and Truist Securities, Inc. (collectively, the “debt commitment parties”) to provide, severally but not jointly, upon the terms and subject to the conditions set forth in the debt commitment letter, acquisition debt financing consisting of (i) senior secured credit facilities in the aggregate amount of $3,650 million, comprised of a $500 million five-year revolving credit facility and a $3,150 million seven-year term loan facility and (ii) a senior secured bridge loan facility in the amount of $2,200 million (collectively, the “debt financing”). Prior to or concurrently with the closing, Jazz expects to issue up to $2,200 million of debt securities, the issuance of which will reduce commitments under the bridge loan facility dollar for dollar. The aggregate proceeds of the debt financing and any offering of debt securities will be used in part for the payment of Bidco Group’s closing date cash requirements and for general corporate purposes.

No Solicitation; Change in Board Recommendation (page 108)

Under the Transaction Agreement, GW is subject to certain restrictions on its ability to solicit alternative acquisition proposals from third parties, to provide information to third parties, to enter into or continue discussions with third parties regarding alternative acquisition proposals, to enter into any commitment with respect to any alternative acquisition proposal, to recommend or approve any alternative acquisition proposal or to change the recommendation of the GW Board in favor of the Transaction, subject to customary exceptions. In addition, GW may be required to pay Bidco (or its designee) a termination fee of $71.5 million in certain



 

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circumstances, including certain circumstances where the Transaction Agreement is terminated following GW’s receipt of an alternative acquisition proposal.

Termination of the Transaction Agreement (page 116)

The Transaction Agreement may be terminated and the Transaction may be abandoned at any time prior to the effective time (notwithstanding the receipt of the required GW shareholder approvals):

 

   

by mutual written agreement of GW and Bidco;

 

   

by either GW or Bidco if:

 

   

the Transaction has not been completed on or before 11:59 p.m. Eastern Time on the initial end date of August 3, 2021, subject to two, three-month extensions in certain circumstances relating to the antitrust conditions not being satisfied and certain other limited extensions;

 

   

a court or other governmental authority of competent jurisdiction has issued an order that permanently enjoins, prevents or prohibits the consummation of the Transaction and such order has become final and nonappealable, except that this right to terminate the Transaction Agreement will not be available to any party whose breach of any provision of the Transaction Agreement was the proximate cause of such order;

 

   

the Court Meeting or General Meeting (including, in each case, any postponements or adjournments thereof) has been completed and the required GW shareholder approval voted on at the meeting has not been obtained;

 

   

the Court declines or refuses to sanction the Scheme of Arrangement, except, that if an appeal has been submitted by either Bidco or GW in respect of any such decline or refusal, this right to terminate the Transaction Agreement may not be exercised until such appeal has been denied in a final determination; or

 

   

the other party breaches any representation or warranty or fails to perform any covenant or agreement that would cause the conditions to the obligations of the non-breaching party to complete the Transaction not to be satisfied, subject to cure periods;

 

   

by Bidco if:

 

   

a GW adverse recommendation change has occurred (a “Recommendation Change Termination”);

 

   

following the commencement of a takeover, tender or exchange offer relating to GW ordinary shares or GW ADSs by a third party, the GW Board states that it recommends such takeover, tender or exchange offer or expresses no opinion or is unable to take a position (other than a “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act) with respect to such takeover, tender or exchange offer, or fails to publicly affirm the GW Board recommendation and recommend that the holders of GW ordinary shares and GW ADSs reject such takeover, tender or exchange offer within 10 business days after the commencement of such takeover, tender offer or exchange offer pursuant to Rule 14d-9 promulgated under the Exchange Act (or, if earlier, five business days prior to the Court Meeting or the General Meeting) (a “Takeover Offer Termination”); or

 

   

a willful breach by GW of the provisions of the Transaction Agreement relating to (a) the non-solicitation covenant or (b) the Scheme of Arrangement and the Shareholder Meetings, this proxy statement or the implementation of the Scheme of Arrangement (in the case of clause (b), solely if such willful breach would reasonably be expected to prevent, materially impair or materially delay the consummation of the Transaction) has occurred (a “Willful Breach Termination”);



 

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by GW:

 

   

prior to the receipt of the required GW shareholder approvals, if (a) the GW Board has authorized the termination of the Transaction Agreement in accordance with the terms of the non-solicitation covenant in order to enter into a definitive agreement providing for a superior proposal and (b) substantially concurrently with such termination, GW enters into such definitive agreement, so long as, at or prior to, and as a condition to the effectiveness of, such termination, GW pays Bidco (or its designee) the termination fee of $71.5 million (a “Superior Proposal Termination”).

Termination Fee and Expenses (page 117)

GW is required to pay Bidco (or its designee) the termination fee of $71.5 million if:

 

   

the Transaction Agreement is terminated by either GW or Bidco as a result of the Court declining or refusing to sanction the Scheme of Arrangement if GW shall have communicated to the Court at the Court Sanction Hearing that the GW Board no longer supports the consummation of the Transaction or no longer wishes the Court to sanction the Scheme of Arrangement, or that GW Board favors or approves of any other acquisition proposal, or shall have made any other statement or communication to the Court to the effect of any of the foregoing;

 

   

the Transaction Agreement is terminated by Bidco pursuant to:

 

   

a Recommendation Change Termination;

 

   

a Takeover Offer Termination; or

 

   

a Willful Breach Termination;

 

   

the Transaction Agreement is terminated by GW pursuant to a Superior Proposal Termination; or

 

   

the Transaction Agreement is terminated by either Bidco or GW if the Court Meeting or General Meeting has been completed and any required GW shareholder approval voted on at such meeting has not been obtained so long as (a) an acquisition proposal was publicly announced or made publicly known after February 3, 2021 and was not publicly withdrawn without qualification at least four business days prior to the Court Meeting and General Meeting and (b) within 12 months of the date on which the Transaction Agreement is so terminated, GW enters into a definitive agreement providing for an acquisition proposal or an acquisition proposal is completed (with references to 20% in the definition of acquisition proposal being deemed to be references to 50% for this purpose).

Treatment of Equity and Equity-Based Awards (page 98)

At the effective time, subject to all required withholding taxes:

 

   

Each outstanding Pre-2021 Share Option and each Share Option granted following February 3, 2021 to GW’s non-employee directors that is outstanding immediately prior to the effective time, to the extent unvested, will be deemed to be fully vested and each such Share Option will be exercised automatically at the effective time and the holder will be entitled to receive, in full satisfaction of their rights in respect of such Share Option, an amount in cash, without interest, equal to the product of (x) the number of GW ADSs underlying such Share Option (or if such Share Option is in respect of GW ordinary shares, the number of GW ordinary shares divided by 12 (rounded up to the nearest whole number)) and (y) the excess (if any) of the Value of the scheme deliverables over the per share exercise price of each Share Option (or, if the share exercise price is in respect of GW ordinary shares, the share exercise price multiplied by 12). For this purpose, the “Value” means the sum of (i) the product of



 

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(A) the per ADS share deliverable multiplied by (B) the opening price on Nasdaq of a Jazz ordinary share on the closing date and (ii) the per ADS cash consideration.

 

   

Each 2021 Share Option outstanding immediately prior to the effective time, whether vested or unvested, will become vested as to one-third of the 2021 Share Option at the effective time and will be treated in accordance with the previous bullet point. The remaining two-thirds of such 2021 Share Option will cease to represent a right to acquire the GW ADSs and will be converted automatically into a Jazz Option, half of which will vest on the first anniversary of the original grant date and half of which will vest on the second anniversary of the original grant date, subject to accelerated vesting in connection with qualifying terminations of employment. The number of Jazz ordinary shares subject to each such Jazz Option will be equal to the product of (x) the number of GW ADSs underlying such two-thirds of 2021 Share Option immediately prior to the effective time multiplied by (y) the GW option exchange ratio, and rounding such product down to the nearest whole share. The per share exercise price for each such Jazz Option will be determined by dividing: (A) the per share exercise price for the GW ADSs underlying such 2021 Share Option immediately prior to the effective time; by (B) the GW option exchange ratio (rounding such quotient up to the nearest whole cent). Any outstanding 2021 Share Option that is, as of immediately prior to the effective time, subject to performance-based vesting, will be deemed to have fully satisfied all applicable performance goals such that the corresponding Jazz Option will only continue to vest over the remaining service-vesting schedule. For the purposes of the foregoing, the “GW option exchange ratio” is equal to the sum of (A) the per ADS share deliverable plus (B) the per ADS cash consideration divided by the Jazz average share price.

No Appraisal or Dissenters’ Rights (page 95)

No appraisal or dissenters’ rights are available to holders of GW ordinary shares and GW ADSs under the laws of England and Wales in connection with the Transaction.

Material United States Federal Income Tax Consequences of the Transaction (page 136)

The receipt of cash and Jazz ordinary shares pursuant to the Transaction will be a taxable transaction for U.S. federal income tax purposes. Generally, for U.S. federal income tax purposes, if you are a holder of GW ordinary shares or GW ADSs who is a U.S. holder (as defined below in the section of this proxy statement entitled “Material United States Federal Income Tax Consequences of the Transaction” beginning on page 136 of this proxy statement), you will generally recognize capital gain or loss equal to the difference, if any, between (i) the sum of the amount of cash and the fair market value of the Jazz ordinary shares received in the Transaction and (ii) your adjusted tax basis in the GW ordinary shares or GW ADSs surrendered in exchange therefor, as applicable. Because individual circumstances may differ, we recommend that you consult your own tax advisor to determine the particular tax effects to you. If you are a holder of GW ordinary shares or GW ADSs who is a non-U.S. holder (as defined below in the section of this proxy statement entitled “Material United States Federal Income Tax Consequences of the Transaction” beginning on page 136 of this proxy statement), the Transaction will generally not be taxable to you under U.S. federal income tax laws unless you have certain connections to the United States and certain other conditions are met.

Material United Kingdom Tax Consequences of the Transaction (page 141)

UK Shareholders (as defined below in the section entitled “Material United Kingdom Tax Consequences of the Transaction” beginning on page 141 of this proxy statement), whose GW ordinary shares or GW ADSs are transferred pursuant to the Transaction will be disposing of them for the purposes of UK capital gains tax or corporation tax on chargeable gains (as applicable). A disposal of GW ordinary shares or GW ADSs by a UK Shareholder may, depending on the UK Shareholder’s circumstances and subject to any available allowances,



 

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exemptions and reliefs, give rise to a chargeable gain or an allowable loss for the purposes of UK taxation on chargeable gains. Non-UK Shareholders should not generally be liable to UK capital gains tax or corporation tax on capital or chargeable gains (as applicable) realized on the disposal of their GW ordinary shares or GW ADSs pursuant to the Scheme, unless they have certain connections to the United Kingdom. Because individual circumstances may differ, we recommend that you consult your own tax advisor to determine the particular tax effects to you.

Material Irish Tax Consequences of the Transaction (page 144)

For Irish tax purposes, any stamp duty payable as a result of the transfer of Scheme Shares to Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) under the Scheme of Arrangement will not be payable by the GW shareholders. This proxy statement contains a summary of the material Irish tax consequences that will generally apply to any non-Irish resident GW shareholders who acquire Jazz ordinary shares pursuant to the Transaction—see the section entitled “Material Irish Tax Consequences of the Transaction” beginning on page 144 of this proxy statement. GW shareholders are urged to consult their tax advisors regarding the specific Irish tax consequences to them of either (i) the Transaction or (ii) the holding of Jazz ordinary shares.

Comparison of Rights of Shareholders of GW and Jazz (page 146)

The rights of GW shareholders are governed by English law and GW’s Articles. Your rights as a Jazz shareholder will be governed by Irish law and the Jazz Constitution. Your rights under the Jazz Constitution will differ in some respects from your rights under the GW Articles. For more detailed information regarding a comparison of your rights as a shareholder of GW and Jazz, see the section entitled “Comparison of Rights of Shareholders of GW and Jazz” beginning on page 146 of this proxy statement.



 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This proxy statement and the documents incorporated into it by reference contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 regarding GW and Jazz including, but not limited to, statements related to the proposed acquisition of GW and the anticipated timing, results and benefits thereof; statements regarding the expectations and beliefs of the GW Board, GW management, the Jazz Board or Jazz management and other statements that are not historical facts. You can generally identify forward-looking statements by the use of forward-looking terminology such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “explore,” “evaluate,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” or “will,” or the negative thereof or other variations thereon or comparable terminology. These forward-looking statements are based on each of the companies’ current plans, objectives, estimates, expectations and intentions and inherently involve significant risks and uncertainties, many of which are beyond GW’s or Jazz’s control.

Actual results and the timing of events could differ materially from those anticipated in such forward-looking statements as a result of these risks and uncertainties, which include, without limitation, risks and uncertainties associated with GW’s and Jazz’s ability to complete the Transaction on the proposed terms or on the anticipated timeline, or at all, including:

 

   

risks and uncertainties related to securing the necessary regulatory and shareholder approvals, the sanction of the Court and satisfaction of other closing conditions to consummate the Transaction;

 

   

the occurrence of any event, change or other circumstance that could give rise to the termination of the Transaction Agreement;

 

   

risks related to diverting the attention of GW and Jazz management from ongoing business operations;

 

   

failure to realize the expected benefits of the Transaction;

 

   

significant transaction costs and/or unknown or inestimable liabilities;

 

   

the risk of shareholder litigation in connection with the Transaction, including resulting expense or delay;

 

   

the risk that GW’s business will not be integrated successfully or that such integration may be more difficult, time-consuming or costly than expected;

 

   

Jazz’s ability to obtain the expected financing to consummate the Transaction;

 

   

risks related to future opportunities and plans for the combined company, including the uncertainty of expected future regulatory filings, financial performance and results of the combined company following completion of the Transaction;

 

   

GW’s or the combined company’s dependence on the successful commercialization of Epidiolex or Epidyolex (the trade name for Epidiolex in Europe) and the uncertain market potential of Epidiolex/Epidyolex;

 

   

pharmaceutical product development and the uncertainty of clinical success;

 

   

the regulatory approval process, including the risks that GW or Jazz may be unable to submit anticipated regulatory filings on the timeframe anticipated, or at all, or that GW or the combined company may be unable to obtain regulatory approvals of any product candidates, including nabiximols and Epidiolex/Epidyolex for additional indications, in a timely manner or at all;

 

   

disruption from the Transaction, making it more difficult to conduct business as usual or maintain relationships with customers, employees, distributors, suppliers or other third parties;

 

   

effects relating to the announcement of the Transaction or any further announcements or the consummation of the Transaction on the market price of Jazz ordinary shares or GW ADSs or GW ordinary shares;

 

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the possibility that, if Jazz does not achieve the perceived benefits of the Transaction as rapidly or to the extent anticipated by financial analysts or investors, the market price of Jazz’s ordinary shares could decline;

 

   

regulatory initiatives and changes in tax laws;

 

   

market volatility; and

 

   

other risks and uncertainties affecting GW and Jazz.

Consequently, all of the forward-looking statements GW or Jazz make in this proxy statement are qualified by the information contained or incorporated by reference into this proxy statement, including, but not limited to (i) the information contained under this heading and under the section entitled “Risk Factors” beginning on page 28 of this proxy statement and (ii) the information discussed under the sections entitled “Risk Factors” in GW’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020 and in Jazz’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020. See the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement.

In addition, while GW and Jazz expect the COVID-19 pandemic to continue to adversely affect their respective business operations and financial results, the extent of the impact on the combined company’s ability to generate sales of and revenues from its approved products, execute on new product launches, its clinical development and regulatory efforts, its corporate development objectives and the value of and market for its ordinary shares, will depend on future developments that are highly uncertain and cannot be predicted with confidence at this time. Moreover, other risks and uncertainties of which GW or Jazz are not currently aware may also affect each of the companies’ forward-looking statements and may cause actual results and the timing of events to differ materially from those anticipated. Readers of this proxy statement are cautioned that forward-looking statements are not guarantees of future performance.

The forward-looking statements made in this proxy statement are made only as of the date hereof or as of the dates indicated in the forward-looking statements and reflect the views stated therein with respect to future events as at such dates, even if they are subsequently made available by GW or Jazz on their respective websites or otherwise. Except as otherwise required by law, neither GW nor Jazz undertakes any obligation, and each expressly disclaims any obligation, to update or supplement any forward-looking statements to reflect actual results, new information, future events, changes in its expectations or other circumstances that exist after the date as of which the forward-looking statements were made.

 

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RISK FACTORS

In addition to the other information contained or incorporated by reference into this proxy statement, including the matters addressed in the section entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 26 of this proxy statement, GW shareholders should carefully consider the following risk factors in determining whether to vote to approve the Proposals. You should also read and consider the risk factors associated with each of the businesses of GW and Jazz because these risk factors may affect the business operations and financial results of the combined company. These risk factors may be found under Part I, Item 1A, “Risk Factors” in GW’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed on February 26, 2021 and Part I, Item 1A, “Risk Factors” in Jazz’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed on February 23, 2021, each of which is on file with the SEC and both of which are incorporated by reference into this proxy statement.

Risks Relating to the Transaction

There are material uncertainties and risks associated with the Transaction Agreement and the Transaction.

There are material uncertainties and risks associated with the Transaction Agreement and the Transaction. If any of these uncertainties and risks develop into actual events, then GW’s business, financial condition, results and ongoing operations, share price or prospects could be materially adversely affected. These uncertainties and risks include the following:

 

   

the announcement or pendency of the Transaction may impede GW’s ability to retain and hire key personnel and its ability to maintain relationships with its customers, distributors, suppliers or other third parties or its operating results and business generally;

 

   

matters relating to the Transaction, including integration planning, may require substantial commitments of time and resources by GW’s management and employees and may otherwise divert the attention of management and employees, which may affect GW’s business operations;

 

   

the Transaction Agreement restricts GW from engaging in certain actions without the approval of Bidco, which could prevent GW from pursuing certain business opportunities that arise prior to the closing of the Transaction or making appropriate changes to GW’s business outside the ordinary course of business (see the sections entitled “The Transaction Agreement—Covenants Regarding Conduct of Business by GW Pending the Effective Time” beginning on page 102 of this proxy statement for a description of the restrictive covenants applicable to GW);

 

   

GW’s directors and executive officers have financial interests in the Transaction that may be different from, or in addition to, the interests of GW shareholders generally, which could have influenced their decisions to support or approve the Transaction; and

 

   

potential shareholder litigation in connection with the Transaction may result in significant costs of defense, indemnification and liability.

The value of the share portion of the transaction deliverables is subject to change based on fluctuations in the value of Jazz ordinary shares, and GW shareholders may, in certain circumstances, receive shares with a value that, at the time received, is less than $20.00 per GW ADS.

Under the Transaction Agreement, at the effective time, the holders of GW ordinary shares will be entitled to receive, for each such share (a) $16.6623 in cash and (b) an amount of Jazz ordinary shares equal to the exchange ratio. As a result of the Transaction, the holders of GW ADSs will be entitled to receive (a) $200 in cash and (b) 12 times the share deliverable in the form of Jazz ordinary shares (less the GW ADS Fees and any applicable withholding taxes).

While the Transaction Agreement provides for a symmetrical collar mechanism that is intended to provide a fixed value of approximately $20.00 per GW ADS in Jazz ordinary shares at the closing of the Transaction if the

 

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Jazz average share price is between $139.72 and $170.76, if the Jazz average share price is equal to or less than $139.72, then the holders of GW ordinary shares will receive a fixed exchange ratio of 0.011929 Jazz ordinary shares per GW ordinary share as the share portion of the transaction deliverables (which may correspond to less than $1.6623 market value of Jazz ordinary shares per GW ordinary share) and the holders of GW ADSs will receive a fixed exchange ratio of 0.143148 Jazz ordinary shares per GW ADS as the share portion of the transaction deliverables (which may correspond to less than $20.00 market value of Jazz ordinary shares per GW ADS). In addition, the collar mechanism does not afford any protection for declines in the Jazz ordinary share price following the last day of the 15-trading-day measurement period. Accordingly, the value received by GW shareholders in the Transaction may be negatively impacted by fluctuations in the Jazz ordinary share price prior to, or following, the closing of the Transaction. It is impossible to accurately predict the market price of the Jazz ordinary shares at the completion of the Transaction or during the 15-trading-day measurement period and, therefore, impossible to accurately predict the number or value of the Jazz ordinary shares that GW shareholders will receive in the Transaction.

The market price for Jazz ordinary shares may fluctuate both prior to the closing of the Transaction and thereafter for a variety of reasons, including, among others, general market and economic conditions, the demand for GW’s and Jazz’s products, changes in laws and regulations, other changes in the respective businesses, operations, prospects and financial results of operations of GW and Jazz, market assessments of the likelihood that the Transaction will be completed, and the expected timing of the Transaction. Many of these factors are beyond GW’s and Jazz’s control. For further information on the businesses of GW and Jazz and certain factors to consider in connection with those businesses, see the documents incorporated by reference into this proxy statement and referred to under the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement.

The Transaction may not be completed in a timely manner or at all.

Completion of the Transaction is subject to certain closing conditions, including the following:

 

   

approval by GW shareholders of the Scheme of Arrangement and the passing of the special resolution to amend GW’s organizational documents and other related matters;

 

   

sanction of the Scheme of Arrangement by the Court;

 

   

certain regulatory approvals, including expiration or early termination of the waiting period under the HSR Act;

 

   

the absence of any law or order prohibiting consummation of the Transaction;

 

   

compliance in all material respects with the obligations of GW, Jazz and Bidco under the Transaction Agreement;

 

   

accuracy of the representations and warranties of GW, Jazz and Bidco, subject to certain materiality standards set forth in the Transaction Agreement;

 

   

the absence of any “Material Adverse Effect” with respect to GW or Jazz (see the section entitled “The Transaction Agreement—Representations and Warranties” beginning on page 99 of this proxy statement for more information on “Material Adverse Effect”); and

 

   

the Jazz ordinary shares deliverable in the Transaction having been approved for listing on Nasdaq.

GW cannot be certain when or if the conditions for the Transaction will be satisfied or (if permissible under applicable law) waived or when or if the Transaction will be completed. For a more complete summary of the conditions that must be satisfied or waived prior to completion of the Transaction, see the section entitled “The Transaction Agreement—Conditions to Complete the Transaction” beginning on page 115 of this proxy statement and the section entitled “The Transaction—Regulatory and Court Approvals Required for the Transaction” beginning on page 94 of this proxy statement.

 

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In connection with obtaining antitrust clearance for the Transaction, Jazz is not required to (1) make divestitures of or take other actions with respect to any assets or businesses of Jazz or its subsidiaries that would, individually or in the aggregate, have a material adverse effect on Jazz and its subsidiaries (without giving effect to the Transaction), taken as a whole, or (2) make divestitures of or take other actions with respect to any assets or businesses of GW or its subsidiaries that (a) would reasonably be expected to have, individually or in the aggregate, a material adverse effect on GW and its subsidiaries, taken as a whole, or (b) relate to Epidiolex. There can be no assurance that regulators will not impose conditions, terms, obligations or restrictions and that such conditions, terms, obligations or restrictions will not result in the delay or abandonment of the Transaction. There can be no assurance that all required approvals and clearances will be obtained or will be obtained on a timely basis. The COVID-19 pandemic may also result in delays to the receipt of certain regulatory approvals required to consummate the Transaction. See the section entitled “The Transaction Agreement—Efforts to Complete Transaction” beginning on page 106 of this proxy statement.

Each of GW and Bidco has the right to terminate the Transaction Agreement under certain circumstances (see the section entitled “The Transaction Agreement—Termination of the Transaction Agreement” beginning on page 116 of this proxy statement).

Lawsuits may be filed against GW or Jazz relating to the Transaction and an adverse ruling in any such lawsuit may prevent the Transaction from being completed in the time frame expected or at all.

In the event that the Transaction is not completed for any reason, GW shareholders will not receive any payment for their GW ADSs or GW ordinary shares in connection with the Transaction. Instead, GW will remain an independent public company and GW shareholders will continue to own their GW ADSs and GW ordinary shares.

Failure to complete the Transaction could negatively impact GW’s business, financial results and the market price of GW ADSs.

If the Transaction is delayed or not completed, GW’s ongoing businesses may be adversely affected and will be subject to several risks and consequences, including the following:

 

   

decline in GW ADSs price to the extent that the price of GW ADSs reflects an assumption that the Transaction will be completed;

 

   

negative publicity and a negative impression of GW in the investment community;

 

   

negative reactions from employees, customers, distributors, suppliers or other third parties, including the loss of business opportunities and the ability to effectively respond to competitive pressures;

 

   

management’s focus would have been diverted from pursuing other opportunities that could have been beneficial to GW;

 

   

GW may be required, under certain circumstances, to pay Bidco (or its designee) a termination fee of $71.5 million; and

 

   

GW could be subject to litigation related to any failure to consummate the Transaction or related to any enforcement proceeding commenced against GW to perform its obligations under the Transaction Agreement.

GW’s directors and executive officers may have interests in the Transaction that may be different from the interests of GW shareholders.

When considering the recommendation of the GW Board that GW shareholders approve the Proposals, GW shareholders should be aware that directors and executive officers of GW may have certain interests in the Transaction that may be different from or in addition to the interests of GW shareholders generally. These interests include the treatment in the Transaction of GW equity compensation awards, certain severance under

 

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the GW Severance Plans, certain transition incentive bonuses and the indemnification of GW directors and officers by Jazz. See the sections entitled “The General Meeting—Proposal 2—Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements”, “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” and “The Transaction Agreement—Indemnification” beginning on pages 51, 87 and 113, respectively, of this proxy statement for further information regarding these interests. The GW Board was aware of these interests and considered them, among other things, in evaluating and approving the Transaction Agreement and the Transaction and in recommending that the GW shareholders approve the Proposals.

The Transaction Agreement contains provisions that could discourage a potential competing acquirer of GW.

GW is subject to certain restrictions on its ability to solicit alternative acquisition proposals from third parties, to provide information to third parties, to enter into or continue discussions with third parties regarding alternative acquisition proposals, to enter into any commitment with respect to any alternative acquisition proposal, to recommend or approve any alternative acquisition proposal or to change the recommendation of the GW Board in favor of the Transaction, subject to customary exceptions. In addition, GW may be required to pay Bidco (or its designee) a termination fee of $71.5 million in certain circumstances, including if the Transaction Agreement is terminated in certain circumstances following GW’s receipt of an alternative acquisition proposal.

These provisions could discourage a potential third-party acquirer that might have an interest in acquiring all or a significant portion of GW from considering or proposing the acquisition, even if it was prepared to pay consideration with a higher per GW ADS value than the value proposed to be received or realized in the Transaction, or might otherwise result in a potential third-party acquirer proposing to pay a lower price to GW shareholders than it might otherwise have proposed to pay because of the added expense of the termination fee that may become payable in certain circumstances. For more information see the section entitled “The Transaction Agreement—No Solicitation; Change in Board Recommendation” beginning on page 108 of this proxy statement and the section entitled “The Transaction Agreement—Termination Fees and Expenses” beginning on page 117 of this proxy statement.

GW has incurred, and will incur, substantial direct and indirect costs as a result of the Transaction.

GW has incurred, and will continue to incur, significant costs, expenses and fees for professional advisors, printing and other transaction costs in connection with the Transaction, and a significant portion of these fees and costs are payable by GW regardless of whether the Transaction is consummated.

Risks Relating to the Combined Company Following the Transaction

If the Transaction is completed, the combined company may not realize the anticipated benefits from the Transaction.

The success of the combined company will depend, in part, on the ability to realize the anticipated benefits from successfully combining GW’s and Jazz’s businesses. Difficulties may arise during the process of combining the operations of the companies that could result in:

 

   

the failure to achieve the free cash flow that is anticipated;

 

   

the failure to integrate operations and internal systems, programs and controls;

 

   

the loss of key employees;

 

   

the failure to harmonize both companies’ corporate cultures; or

 

   

the disruption of each company’s ongoing businesses or inconsistencies in standards, controls, procedures and policies that adversely affect the combined company’s ability to maintain relationships with employees, customers, distributors, suppliers or other third parties.

 

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As a result, the anticipated benefits of the Transaction may not be realized fully within the expected timeframe or at all or may take longer to realize or cost more than expected. Failure to achieve these anticipated benefits may adversely affect future results of the combined organization, and, consequently, the value of the portion of the transaction deliverables received by GW shareholders in the form of Jazz ordinary shares.

Following the Transaction, the combined company will have a substantial amount of debt, which could adversely affect its business, financial condition or results of operations and prevent it from fulfilling its debt-related obligations.

It is expected that the cash consideration due to GW shareholders under the Transaction Agreement will be approximately $6.5 billion. In addition to using cash on hand, Jazz expects to incur significant acquisition-related debt financing, including secured credit facilities and senior secured notes. This substantially increased indebtedness and higher debt to equity ratio following the consummation of the Transaction may have the effect of, among other things, reducing the flexibility of the combined company to respond to changing business and economic conditions, lowering the credit ratings of the combined company, increasing the borrowing costs of the combined company and/or requiring the combined company to reduce or delay investments, strategic acquisitions and capital expenditures or to seek additional capital or restructure or refinance its indebtedness.

 

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SCHEME PROPOSAL AND THE COURT MEETING AND THE GENERAL MEETING—EXPLANATORY STATEMENT

(In compliance with section 897 of the Companies Act 2006)

March 15, 2021

To the holders of GW ordinary shares and, for information only, to the holders of GW ADSs and the holders of options or awards under any GW employee benefit plan providing for equity or equity-based compensation (“GW Employee Plan”).

RECOMMENDED ACQUISITION OF GW PHARMACEUTICALS PLC BY BIDCO, A WHOLLY OWNED SUBSIDIARY OF JAZZ PHARMACEUTICALS PUBLIC LIMITED COMPANY (AND/OR AT BIDCO’S ELECTION, JAZZ AND/OR THE DR NOMINEE)

 

1.

Introduction

The following section of this proxy statement explains, among other things, the effect of the Scheme of Arrangement and, together with the further information contained elsewhere in this proxy statement, constitutes the explanatory statement in respect of the Scheme of Arrangement as required by section 897 of the Companies Act. Accordingly, in addition to the information contained in the following section of this proxy statement, your attention is drawn to the further information contained elsewhere in this proxy statement and you are advised to read this proxy statement in full.

On February 3, 2021, it was announced that Jazz, GW and Bidco had entered into a definitive agreement for Bidco, a wholly owned subsidiary of Jazz (and/or, at Bidco’s election, Jazz and/or the DR Nominee), to acquire the entire issued and to be issued share capital of GW, in exchange for the aggregate transaction deliverables by way of a court-sanctioned scheme of arrangement under Part 26 of the Companies Act.

Your attention is drawn to the section entitled “The Transaction” beginning on page 53 of this proxy statement, which contains, among other things, (i) information on the reasons for and benefits of the Transaction and (ii) the unanimous recommendation by the GW Board to GW shareholders to vote in favor of the resolutions to be proposed at the Court Meeting and the General Meeting. The Scheme of Arrangement is set out in full in the section entitled “The Scheme of Arrangement” beginning on page 120 of this proxy statement. For overseas holders of GW ordinary shares, your attention is drawn to section 10 of this Explanatory Statement.

 

2.

The Transaction

The Transaction is to be effected by means of the Scheme of Arrangement, a court-sanctioned scheme of arrangement between GW and the Scheme Shareholders, under Part 26 of the Companies Act. Implementation of the Transaction requires the approval of the Scheme of Arrangement by the GW shareholders at the Court Meeting and the approval of the Scheme Implementation Proposal by the GW shareholders at the General Meeting. The Scheme of Arrangement also requires the sanction of the Court. The Scheme of Arrangement is set out in full in the section entitled “The Scheme of Arrangement” beginning on page 120 of this proxy statement.

The purpose of the Scheme of Arrangement is to enable Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) to acquire the entire issued and to be issued share capital of GW. This is to be achieved by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) acquiring the Scheme Shares held by the Scheme Shareholders as at the Scheme Record Time, in return for which the Scheme Shareholders will receive the cash consideration and the share deliverable for their Scheme Shares on the basis set out in the Scheme of Arrangement.

 

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If the Transaction is completed:

 

   

all GW ordinary shares will be acquired by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee);

 

   

holders of GW ordinary shares as of the record time for the Scheme of Arrangement will, on the terms set out in the Scheme of Arrangement, have the right to receive for each GW ordinary share held by them at such time the scheme deliverables, consisting of an amount equal to $16.6623 in cash plus an amount of Jazz ordinary shares equal to the exchange ratio; and

 

   

accordingly, holders of GW ADSs as of the effective time will have the right to receive for each GW ADS an amount equal to $200 in cash (less the GW ADS Fees and any applicable withholding taxes) plus an amount of Jazz ordinary shares equal to 12 times the share deliverable.

The “exchange ratio” will be determined as follows:

 

   

if the Jazz average share price is greater than $139.72 but less than $170.76, the exchange ratio will be equal to the quotient obtained by dividing (x) $1.6623 by (y) the Jazz average share price, rounded to the nearest millionth of a share (corresponding to a per ADS share deliverable equal to an amount of Jazz ordinary shares equal to the quotient obtained by dividing (x) $20.00 by (y) the Jazz average share price);

 

   

if the Jazz average share price is equal to or less than $139.72, the exchange ratio will be 0.011929 (corresponding to a per ADS share deliverable of 0.143148 Jazz ordinary shares); and

 

   

if the Jazz average share price is equal to or greater than $170.76, the exchange ratio will be 0.009760 (corresponding to a per ADS share deliverable of 0.117120 Jazz ordinary shares).

Accordingly, the actual number of Jazz ordinary shares and the value of Jazz ordinary shares delivered to holders of GW ordinary shares (and, in consequence, to holders of GW ADSs) will depend on the Jazz average share price, and you will not be able to ascertain the precise value of the stock component of the scheme deliverables or ADS deliverables at the time you vote at the Shareholder Meetings. Jazz ordinary shares are traded on Nasdaq under the trading symbol “JAZZ” and we encourage you to obtain current market quotations for the Jazz ordinary shares, given that part of the scheme deliverables and ADS deliverables are made up of Jazz ordinary shares.

Fractional Jazz ordinary shares to which holders of GW ordinary shares would otherwise be entitled will be aggregated and sold in the market as soon as practicable after the closing date by the exchange agent, with the net proceeds of any such sale (after deduction of the expenses of the sale, including taxes) distributed in cash in due proportion to the fractional shares to which such shareholder would otherwise have been entitled, without interest and subject to any required tax withholding.

If reasonably practicable, unless other arrangements are reasonably acceptable to GW, Bidco and Jazz, GW ADSs will be treated by the Depositary, as closely as reasonably possible, in the same manner as GW ordinary shares are treated by the exchange agent with respect to the treatment of fractional shares.

The cash consideration is expected to be funded through a combination of cash on hand and debt financing. Jazz has obtained fully committed debt financing from the debt commitment parties.

The Currency Conversion Facility

The Currency Conversion Facility is being made available to registered holders of GW ordinary shares (other than the Depositary) pursuant to which they will be able to elect (subject to the terms and condition of the Currency Conversion Facility) to receive the cash consideration in British pounds at the Average Market Exchange Rate obtained by Bidco through one or more market transactions over one or more business days following the Scheme Record Time before the relevant payment date. The Currency Conversion Facility is not available to holders of GW ADSs.

 

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Bidco intends to obtain the amount of British pounds required to satisfy Currency Elections through one or more market transactions carried out over one or more business days following the Scheme Record time. The number of transactions, time period required, exchange rates obtained and level of transaction, foreign exchange and dealing costs and commissions associated with the conversion will depend on market conditions and the number of GW ordinary shares in respect of which a valid Currency Election is made. However, Bidco will use all reasonable endeavors to obtain the best rate reasonably available in the market (including taking account of the size of the transactions and the time frames within which they are to be executed) at the relevant times and to ensure that the application transaction and dealing costs are on arm’s length market terms. The Average Market Exchange Rate obtained by Bidco will be applied such that all eligible GW shareholders who have made a Currency Election will receive the same amount of British pounds per GW ordinary share. For any holder of GW ordinary shares electing to be paid their cash consideration in British pounds pursuant to the Currency Conversion Facility, the amount per GW ordinary share received may, depending on the prevailing exchange rate, result in a payment below or above the amount that they would have received based on the USD:GBP exchange rate as at the date of this proxy statement.

Further information on how to make a Currency Election is included in the section entitled “Notes for Making Currency Elections” beginning on page 165 of this proxy statement.

 

3.

Conditions to Complete the Transaction

The respective obligations of GW, Bidco and Jazz to complete the Transaction are subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the following conditions:

 

i.

the receipt of the required GW shareholder approvals;

 

ii.

the sanction of the Scheme of Arrangement by the Court;

 

iii.

the absence of any order issued by any court or other governmental authority of competent jurisdiction that remains in effect and enjoins, prevents or prohibits the completion of the Transaction;

 

iv.

the absence of any applicable law enacted, entered, promulgated or enforced by any governmental authority that remains in effect and prohibits or makes illegal completion of the Transaction;

 

v.

the Jazz ordinary shares to be delivered to GW shareholders in connection with the Transaction being approved for listing on Nasdaq; and

 

vi.

the expiration or termination of any waiting period applicable to the Transaction under the HSR Act and any applicable waiting period or consent under the foreign antitrust laws relating to the Transaction shall have expired, been terminated, or been obtained, as applicable.

The obligation of GW to complete the Transaction is subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the following additional conditions:

 

i.

Jazz and Bidco each having performed, in all material respects, all of their respective obligations required to be performed by Jazz and Bidco at or prior to the closing of the Transaction;

 

ii.

the representations and warranties of Jazz and Bidco being true and correct to the extent specified in the Transaction Agreement, including that no Material Adverse Effect with respect to Jazz has occurred since September 30, 2020; and

 

iii.

the receipt of a certificate from an executive officer of Jazz confirming, on behalf of both Jazz and Bidco, the satisfaction of the conditions set forth in the immediately preceding two clauses.

 

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The obligation of Jazz and Bidco to complete the Transaction is subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the following additional conditions:

 

i.

GW having performed, in all material respects, all of its obligations required to be performed by it at or prior to the closing;

 

ii.

the representations and warranties of GW being true and correct to the extent specified in the Transaction Agreement, including that no Material Adverse Effect with respect to GW has occurred since September 30, 2020; and

 

iii.

the receipt of a certificate from an executive officer of GW confirming the satisfaction of the conditions set forth in the immediately preceding two clauses.

The Scheme of Arrangement can only become effective if all conditions to the Transaction, including the required GW shareholder approvals and the sanction of the Court, have been satisfied or (to the extent permitted by law) waived. The Scheme of Arrangement will become effective upon a copy of the Court Order being delivered to the Registrar of Companies in England and Wales for registration. Subject to the satisfaction or waiver of the conditions to the Transaction, including the sanction of the Scheme of Arrangement by the Court, the effective time is expected to occur in the second quarter of 2021.

 

4.

Shareholder Meetings

Before the Court’s sanction can be sought, the Scheme of Arrangement requires, among other things, approval of the Scheme Proposal by Scheme Shareholders at the Court Meeting. The Scheme Proposal must be approved by a simple majority in number of the GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy, representing at least 75% in value of the GW ordinary shares in respect of which a vote has been cast. Approval of the Scheme Proposal is required to consummate the Transaction. GW shareholders are also being asked to consider and approve the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements at the General Meeting. The Scheme Implementation Proposal, if approved, will (i) authorize the GW Board to take all action necessary or appropriate for carrying the Scheme of Arrangement into effect and (ii) make certain amendments to the GW Articles in order to facilitate the Transaction. The Scheme Implementation Proposal will be proposed as a special resolution at the General Meeting, which means that the Scheme Implementation Proposal must be approved by at least 75% of the votes cast by GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy at the General Meeting. Approval of the Scheme Implementation Proposal is required to consummate the Transaction.

The Dodd-Frank Act and Rule 14a-21(c) under the Exchange Act require that GW seek a non-binding, advisory vote from GW shareholders to approve the compensation that may be paid or become payable to GW’s named executive officers in connection with the Transaction and the agreements or understandings pursuant to which such compensation may be paid or become payable, as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of this proxy statement, including the associated narrative discussion. The Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements will be proposed as an ordinary resolution at the General Meeting, which means that the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements must be approved by a simple majority of the votes cast by GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy at the General Meeting. Unlike the Scheme Proposal and Scheme Implementation Proposal, the approval of the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements is not required to consummate the Transaction.

Notices of both the Court Meeting and the General Meeting are set out at the beginning of this proxy statement. Entitlement to attend and vote at these meetings and the number of votes which may be cast will be determined by reference to the register of members of GW at the Voting Record Time. Entitlement to submit ADS voting

 

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instruction cards and the number of votes which an ADS holder may instruct the Depositary to cast on its behalf will be determined by reference to the register of the GW ADSs maintained by the Depositary at the GW ADS Voting Record Time.

If the Scheme of Arrangement becomes effective, it will be binding on all Scheme Shareholders, irrespective of whether or not they attended or voted at the Court Meeting or the General Meeting.

Date, Time, Place and Purpose of the Court Meeting

The Court Meeting will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom at 2:00 p.m. (London time) on April 23, 2021 for Scheme Shareholders on the register of members as at the Voting Record Time to consider and, if thought fit, approve the Scheme of Arrangement.

At the Court Meeting, voting will be by poll and each Scheme Shareholder present remotely (via the Virtual Meeting Platform) or by proxy will be entitled to one vote for each GW ordinary share held as at the Voting Record Time. The approval required at the Court Meeting is a simple majority in number of the GW ordinary shareholders present and voting (and entitled to vote) remotely (via the Virtual Meeting Platform) or by proxy, representing at least 75% in value of the GW ordinary shares in respect of which a vote has been cast.

You are strongly urged to sign and return your blue form of proxy for the Court Meeting as soon as possible. The completion and return of the forms of proxy will not prevent you from remotely attending, submitting questions and voting at either the Court Meeting or the General Meeting, or any adjournment thereof, in each case via the Virtual Meeting Platform, if you are entitled to and wish to do so. Scheme Shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables Scheme Shareholders to be seen and heard through an audio visual link during the course of the Court Meeting if they would prefer to do so.

Date, Time, Place and Purpose of the General Meeting

The General Meeting will be held at Kingsgate House, Newbury Road, Andover SP10 4DU, United Kingdom at 2:15 p.m. (London time) on April 23, 2021 for GW shareholders on the register of members as at the Voting Record Time to consider and, if thought fit, approve the Scheme Implementation Proposal as a special resolution and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements as an ordinary resolution.

At the General Meeting, voting on each of the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements will be by poll and each GW shareholder present remotely (via the Virtual Meeting Platform) or by proxy will be entitled to one vote for each GW ordinary share held as at the Voting Record Time. The approval required for the Scheme Implementation Proposal to be passed is at least 75% of the votes validly cast on such resolution remotely (via the Virtual Meeting Platform) or by proxy. The approval required for the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements to be passed is a simple majority of the votes validly cast on such resolution remotely (via the Virtual Meeting Platform) or by proxy.

You are strongly urged to sign and return your yellow form of proxy for the General Meeting as soon as possible. The completion and return of the forms of proxy will not prevent you from remotely attending, submitting questions and voting at either the Court Meeting or the General Meeting, or any adjournment thereof, in each case via the Virtual Meeting Platform, if you are entitled to and wish to do so. GW ordinary shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW ordinary shareholders to be seen and heard through an audio visual link during the course of the Court Meeting if they would prefer to do so.

 

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Amendment to the Articles of Association of GW

GW ordinary shares issued after the Scheme Record Time will not be subject to the Scheme of Arrangement. In order to ensure that Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) acquires the entire issued and to be issued share capital of GW, it is therefore proposed that, pursuant to the Scheme Implementation Proposal, the GW Articles be amended so that GW ordinary shares issued after the Scheme Record Time (if any), other than to Bidco or its nominees, will be automatically acquired by Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) on the same terms as under the Scheme of Arrangement.

It is also proposed that, pursuant to the Scheme Implementation Proposal, the GW Articles be amended to ensure that any GW ordinary shares issued at or after the Voting Record Time but prior to the Scheme Record Time will be subject to the Scheme of Arrangement.

Advisory Approval of the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements

It is proposed that, as an ordinary resolution to be proposed at the General Meeting, the GW shareholders vote on the approval (on a non-binding advisory basis) of the compensation that may be paid or become payable to GW’s named executive officers in connection with the Transaction and the agreements or understandings pursuant to which such compensation may be paid or become payable, as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of this proxy statement, including the associated narrative discussion. Failure to obtain this non-binding approval will not prevent the consummation of the Transaction.

Recommendation of the GW Board

The GW Board has unanimously approved the Transaction Agreement and the actions required and contemplated therein, including the Transaction, and determined that such actions are advisable and in the best interests of GW and its shareholders. The GW Board unanimously recommends that GW shareholders vote “FOR” the Scheme Proposal at the Court Meeting, “FOR” the Scheme Implementation Proposal at the General Meeting and “FOR” the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements at the General Meeting. See “The Transaction—Recommendation of the GW Board; GW’s Reasons for the Transaction” beginning on page 62 of this proxy statement for a more detailed discussion of the GW Board’s recommendation with respect to the Scheme Proposal, the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements.

Entitlement to Vote at the Shareholder Meetings

If you hold GW ordinary shares registered in your own name as of the Voting Record Time, you are entitled to attend the Court Meeting and the General Meeting to vote either remotely or to appoint another person or persons as your proxy or proxies to attend and vote on your behalf, in accordance with the procedures further outlined in this proxy statement. You are strongly encouraged to appoint the Chair of the Shareholder Meetings as your proxy. Only directors of GW will be permitted to attend in person. If any other person is appointed as proxy, he or she will not be permitted to attend the Shareholder Meetings in person, but will be able to attend, submit questions and vote at the Shareholder Meetings remotely via the Virtual Meeting Platform. GW ordinary shareholders will also have the option to access a Zoom link via the Virtual Meeting Platform which enables GW ordinary shareholders to be seen and heard through an audio visual link during the course of the Shareholder Meetings if they would prefer to do so.

Holders of GW ordinary shares who hold their GW ordinary shares indirectly through a broker, bank, trust company or other nominee must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a holder of GW ordinary shares to vote at the Shareholder Meetings. If this applies to you, we encourage you to consult your broker, bank, trust company or other nominee as soon as possible.

 

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If you are a beneficial holder but not the legal holder of GW ordinary shares then, as a matter of English law, your name is not entered in GW’s register of members. Accordingly, if you wish to attend and vote directly (i.e., in your own name) at the Court Meeting or General Meeting, you must become a registered holder of GW ordinary shares by arranging for the completion of a stock transfer form or CREST transfer form by the applicable registered holder in respect of the GW ordinary shares that you wish to be transferred into your name, pay any related UK stamp duty, if applicable, and send the completed stock transfer form (or CREST transfer form) and related documentation (as applicable) to GW’s transfer agent, Link Group at Corporate Actions, Central Square, 29 Wellington Street, Leeds LS1 4DL, United Kingdom, prior to the Voting Record Time. Beneficial holders who wish to attend and vote directly at the Court Meeting or General Meeting should send such stock transfer form (or CREST transfer form) in respect of their GW ordinary shares to permit processing to be completed by Link Group prior to the Voting Record Time.

If either Shareholder Meeting is adjourned, only those GW shareholders on the register of members at 6:00 p.m. (London time) on the date which is two business days before the adjourned meeting will be entitled to attend and vote.

GW ADS holders are not entitled to vote directly at the Court Meeting or the General Meeting. Instead, GW ADS holders on the GW ADS Register as at the GW ADS Voting Record Time will be eligible to provide the Depositary with voting instructions for the Shareholder Meetings and will be sent a Depositary Notice of Court Meeting and General Meeting for GW Pharmaceuticals plc and a GW ADS voting instruction card with the voting instructions printed thereon. The voting instructions must be received by the Depositary no later than 10:00 a.m. (New York time) on April 19, 2021, or, if either the Court Meeting or the General Meeting is adjourned, such later date as may be notified by the Depositary.

Holders of GW ADSs who hold their GW ADSs indirectly through a broker, bank, trust company or other nominee must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a GW ADS holder to issue voting instructions to the Depositary. If this applies to you, we encourage you to consult your broker, bank, trust company or other nominee as soon as possible. Please vote in accordance with the instructions sent to you by your broker, bank, trust company or nominee as soon as possible.

The Depositary will collate all votes properly submitted by holders of GW ADSs and submit a vote on behalf of all such holders.

If you are a GW ADS holder and you wish to vote directly (whether remotely or by proxy) on the Scheme at the Court Meeting or the resolutions at the General Meeting, you must elect to become a shareholder of record by surrendering your GW ADSs to the Depositary to withdraw the GW ordinary shares represented by those GW ADSs, in accordance with the terms and conditions of the Deposit Agreement, so as to become a registered holder of GW ordinary shares prior to the Voting Record Time. In order to surrender your GW ADSs and withdraw the underlying GW ordinary shares if you hold GW ADSs indirectly through a broker, bank, trust company or other nominee you should contact your broker, bank, trust company or other nominee to make the necessary arrangements to ensure the necessary processing can be completed in time.

Quorum

The presence at the General Meeting of two members present remotely (via the Virtual Meeting Platform) or by proxy, who represent at least one-third of the voting rights of all the members entitled to attend and vote on the business to be transacted at the General Meeting is necessary to constitute a quorum.

 

5.

The GW Directors and the Effect of the Scheme of Arrangement on their Interests

Details of the interests of GW directors in the share capital of GW and awards in respect of such share capital, are set out in the section entitled “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on page 87 of this proxy statement. Scheme Shares held by the GW directors at the Scheme Record Time will be subject to the Scheme of Arrangement.

 

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In common with the other participants who hold Share Options, the GW directors who hold Share Options will be able to receive GW ordinary shares to the extent that such awards vest and are exercised prior to the effective time.

It is proposed that, as an ordinary resolution to be proposed at the General Meeting, the GW shareholders vote on the approval (on a non-binding, advisory basis) of the compensation that may be paid or become payable to its named executive officers in connection with the Transaction and the agreements and understandings pursuant to which such compensation may be paid or become payable, as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of this proxy statement, including the associated narrative discussion.

Except as set out in the section entitled “The Transaction—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on page 87 of this proxy statement and the provisions of the Transaction Agreement applicable to directors as described under “The Transaction Agreement” beginning on page 96 of this proxy statement, the effect of the Scheme of Arrangement on the interests of GW directors does not differ from its effect on the interests of any other GW shareholder.

 

6.

Sanction of the Scheme of Arrangement by the Court

Under the Companies Act, the Scheme of Arrangement also requires the sanction of the Court. The Court Sanction Hearing is currently expected to be held in the second quarter of 2021. Scheme Shareholders are entitled to remotely attend the Court Sanction Hearing, should they wish to do so, in person or through counsel.

Following sanction of the Scheme of Arrangement by the Court, the Scheme of Arrangement will become effective in accordance with its terms upon a copy of the Court Order being delivered to the Registrar of Companies in England and Wales.

Upon the Scheme of Arrangement becoming effective, it will be binding on all Scheme Shareholders holding Scheme Shares at the Scheme Record Time (including the Depositary), irrespective of whether or not they attended or voted in favor of, or against, the Scheme of Arrangement at the Court Meeting or in favor of, or against, or withheld their vote on the Scheme Implementation Proposal at the General Meeting.

If the Scheme of Arrangement does not become effective by the end date (as defined and further described in the section entitled “The Transaction Agreement—Termination of the Transaction Agreement” beginning on page 116 of this proxy statement), the Transaction Agreement may be terminated by either Bidco or GW, and the Scheme of Arrangement may not become effective.

 

7.

Solicitation of Proxies

GW will bear its own costs and expenses incurred in connection with the filing, printing and mailing of this proxy statement to GW shareholders and the retention of any information agent or other service provider in connection with the Transaction. This proxy solicitation is being made by GW on behalf of the GW Board. GW has hired D.F. King to assist in the solicitation of proxies at a total cost to GW of approximately £21,000, plus reimbursement of reasonable additional costs and out-of-pocket expenses. In addition to this mailing, proxies may be solicited by directors, officers or employees of GW or its affiliates in person or by telephone or electronic transmission. None of the directors, officers or employees will be directly compensated for such services.

 

8.

Listings, Dealings, Delisting and Settlement

Delisting of GW ADSs

On the closing date, entitlements to Scheme Shares held within CREST will be cancelled, and share certificates in respect of Scheme Shares held in certificated form will cease to be valid documents of title and should be destroyed or, at the request of Bidco, delivered up to Bidco, or to any person appointed by Bidco to receive the same.

 

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As a result of the consummation of the Transaction, GW will become an indirect subsidiary of Jazz and it is intended that GW will be re-registered as a private company under the applicable provisions of the Companies Act as soon as reasonably practicable after the closing date.

It is intended that the last day for dealings in GW ADSs on Nasdaq will be the last business day before the effective time or the day of the effective time. It is intended that, following the effective time, the GW ADS program be terminated and that applications be made to delist the GW ADSs from Nasdaq and terminate the registration of the GW ADSs under the Exchange Act promptly following such time.

Listing and dealings in Jazz ordinary shares

The Jazz ordinary shares to be delivered pursuant to the Transaction will be delivered credited as fully paid. The Jazz ordinary shares will rank in full for all dividends or other distributions on the ordinary share capital of Jazz declared, made or paid after the closing date.

As of the closing date, the Jazz ordinary shares will be listed on Nasdaq, and are not expected to be listed on any other securities exchange.

Settlement

Subject to the Scheme of Arrangement becoming effective (and subject to certain exceptions in relation to overseas GW shareholders), settlement of the scheme deliverables to which any GW shareholder is entitled under the Scheme of Arrangement will be effected within 14 days following the date of the effective time in the following manner:

GW ordinary shares in uncertificated form (i.e., CREST)

If, at the Scheme Record Time, a Scheme Shareholder holds GW ordinary shares in uncertificated form, the cash consideration to which such Scheme Shareholder is entitled will be transferred to such Scheme Shareholder via CREST by Bidco procuring the creation of an assured payment obligation in favor of the appropriate CREST account through which the Scheme Shareholder holds such uncertificated GW ordinary shares in respect of the cash consideration due to such Scheme Shareholder.

The currency of such cash payments will be in accordance with the Currency Elections made by such Scheme Shareholders (other than the Depositary) (the ability to make Currency Elections being described at the sections entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” and “Notes for Making Currency Elections” beginning on pages 33 and 165, respectively, of this proxy statement). Each Scheme Shareholder who holds Scheme Shares in uncertificated form at the Scheme Record Time and does not make a valid Currency Election must ensure that an active US dollar Cash Memorandum Account is in place in CREST by no later than the Scheme Record Time. In the absence of a US dollar Cash Memorandum Account, the payment of the cash consideration in US dollars will not settle, resulting in a delay and the settlement of the cash consideration outside of CREST by way of a check drawn on a branch of a clearing bank. None of GW, Jazz, Bidco, any nominee of Bidco or any of their respective agents will be responsible for any loss or delay in the transmission of checks sent in this way, and such checks will be sent at the risk of the Scheme Shareholder entitled thereto.

With effect from the effective time, each holding of Scheme Shares credited to any stock account in CREST will be disabled and all Scheme Shares will be removed from CREST in due course.

 

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GW ordinary shares in certificated form

If, at the Scheme Record Time, a Scheme Shareholder holds GW ordinary shares in certificated form, the cash consideration to which such Scheme Shareholder is entitled will, regardless of currency, be paid by check drawn on a branch of a clearing bank.

The currency of such cash payments will be in accordance with the Currency Elections made by such Scheme Shareholders (other than the Depositary) (the ability to make Currency Elections being described at the sections entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” and “Notes for Making Currency Elections” beginning on pages 33 and 165, respectively, of this proxy statement). Checks will be mailed to the Scheme Shareholder entitled thereto at the address as appearing in the register of members of GW at the Scheme Record Time or in accordance with any special standing instructions regarding communications. None of GW, Jazz, Bidco, any nominee of Bidco or any of their respective agents will be responsible for any loss or delay in the transmission of checks sent in this way, and such checks will be sent at the risk of the Scheme Shareholder entitled thereto.

The Jazz ordinary shares to which such Scheme Shareholder is entitled will be delivered in uncertificated form through the Direct Registration System.

GW ADSs

Please see section 9 of this Explanatory Statement if you are a GW ADS holder.

Fractional entitlements

Whether a Scheme Shareholder holds GW ordinary shares in uncertificated form or in certificated form, any cash which may be due in respect of fractional entitlements of Jazz ordinary shares will be paid by check.

General

All documents and remittances sent to, from or on behalf of GW shareholders will be sent entirely at their own risk.

 

9.

GW ADS Holders

GW ADS holders will not be entitled to attend the Court Meeting or the General Meeting or vote directly on the Transaction. Instead, GW ADS holders as of the GW ADS Voting Record Time will have the right to instruct the Depositary how to vote the GW ordinary shares underlying the GW ADSs with respect to the Transaction, subject to and in accordance with the terms of the Deposit Agreement. Holders of GW ADSs who hold their GW ADSs indirectly through a broker, bank, trust company or other nominee must rely on the procedures of such broker, bank, trust company or other nominee in order to assert the rights of a GW ADS holder to issue voting instructions to the Depositary.

Voting instructions

Registered GW ADS holders as of the GW ADS Voting Record Time will be sent a Depositary Notice of Court Meeting and General Meeting for GW Pharmaceuticals plc and a GW ADS voting instruction card. GW ADSholders as of the GW ADS Voting Record Time can direct the voting of the GW ordinary shares represented by their GW ADSs, subject to the terms of the Deposit Agreement, a copy of which is available free of charge by following the instructions under the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement.

 

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GW ADS holders as at the GW ADS Voting Record Time should, if they wish to direct the voting of the GW ordinary shares represented by their GW ADSs held by the Depositary at the Court Meeting and the General Meeting, provide GW ADS voting instructions to the Depositary in accordance with the instructions printed thereon. The GW ADS voting instructions must be received by the Depositary no later than 10:00 a.m. (New York time) on April 19, 2021 or, if either the Court Meeting or the General Meeting is adjourned, such later date as may be notified by the Depositary.

GW ADS holders who hold their GW ADSs indirectly through a broker, bank, trust company or other nominee must follow the instructions from such broker, bank, trust company or other nominee if they wish to give voting instructions to the Depositary. Providing voting instructions via a broker, bank, trust company or other nominee may require the provision of information by a particular deadline, well in advance of the deadline to give the Depositary voting instructions, and therefore you are encouraged to reach out to such broker, bank, trust company or other nominee as quickly as possible.

Following timely receipt of valid voting instructions from a GW ADS holder, the Depositary will endeavour, insofar as practicable and permitted under the provisions of, or governing, the GW ordinary shares represented by GW ADSs, to vote or cause its nominee to vote (by means of the appointment of a proxy or otherwise) such GW ordinary shares represented by the GW ADSs in respect of which instructions have been received in accordance with those instructions.

If the Depositary does not receive timely voting instructions from a GW ADS holder, under the terms of the Deposit Agreement, such holder will be deemed to have instructed the Depositary to give a discretionary proxy to a person designated by GW to vote the GW ordinary shares underlying such holder’s GW ADSs unless, among other things, GW instructs the Depositary it does not wish for such a proxy to be given. GW has instructed the Depositary that it does not wish for such discretionary proxy to be given if the Depositary does not receive timely voting instructions from a GW ADS holder for the Shareholder Meetings. Accordingly, if the Depositary does not receive timely voting instructions from a GW ADS holder on or before 10:00 a.m. (New York time) on April 19, 2021, the GW ordinary shares underlying such holder’s GW ADSs will not be represented at the Shareholder Meetings and will not be voted at the Shareholder Meetings.

Cancellation of GW ADSs so as to become a GW ordinary shareholder

Only registered holders of GW ordinary shares will be entitled to attend and vote at the Court Meeting and the General Meeting.

Accordingly, if GW ADS holders themselves wish to attend and vote at the Shareholder Meetings (rather than instructing the Depositary how to vote the underlying GW ordinary shares on their behalf), they must take steps to exchange their GW ADSs for GW ordinary shares, so that they become registered shareholders of GW. In order to do this, GW ADS holders must present their GW ADSs (and, to the extent that such GW ADSs are certificated, the certificates evidencing such GW ADSs) to the Depositary for cancellation before 5:00 p.m. (New York time) on March 31, 2021 (subject to the relevant GW ADS holder’s compliance with the terms of the Deposit Agreement and payment of the Depositary’s fees), together with:

 

(A)

delivery instructions for the GW ordinary shares represented by such GW ADSs (including, if applicable, the name and address of the person who will be the registered holder of such GW ordinary shares); and

 

(B)

if the GW ADS cancellation is to take place after the GW ADS Voting Record Time and before the Voting Record Time, a certification that the GW ADS holder:

 

  i.

(x) beneficially owned the relevant GW ADSs as at the GW ADS Voting Record Time and has not given, and will not give, voting instructions to the Depositary in respect of such GW ADSs in relation to the Shareholder Meetings (or has cancelled all voting instructions previously given); or

 

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  (y) beneficially owned the relevant GW ADSs as at the GW ADS Voting Record Time and has given voting instructions to the Depositary in respect of such GW ADSs in relation to the Shareholder Meetings, but undertakes not to vote the GW ordinary shares represented by such GW ADSs at the Shareholder Meetings; or

 

  ii.

did not beneficially own the relevant GW ADSs as at the GW ADS Voting Record Time, and undertakes not to vote the GW ordinary shares represented by such GW ADSs at the Shareholder Meetings.

GW ADS holders who hold their GW ADSs through a broker, bank, trust company or other nominee should promptly contact their broker, bank, trust company or other nominee to find out what actions are required to cancel the GW ADSs.

GW ADS holders who present their GW ADSs to the Depositary for cancellation in order to take delivery of GW ordinary shares will be responsible for the payment of the Depositary’s fees associated with such cancellation ($0.05 per GW ADS presented for cancellation).

GW ADS holders will not be permitted to cancel their GW ADSs from 5:00 p.m. (New York time) on April 14, 2021 until 5:00 p.m. (New York time) on April 23, 2021. GW ADS holders who take steps (as described in the paragraphs above) to cancel their GW ADSs before 5:00 p.m. (New York time) on March 31, 2021 and become Scheme Shareholders before the Voting Record Time will have the right to attend the both Shareholder Meetings (remotely, via the Virtual Meeting Platform, or by proxy) and be represented by counsel to support or oppose the sanctioning of the Scheme of Arrangement (subject to the limitations and qualifications above).

Settlement of ADS transaction deliverables

Prior to the closing, GW and Bidco will establish procedures to ensure (i) that the Depositary will, after the closing, promptly deliver the ADS deliverables to each holder of a GW ADS entitled thereto and (ii) if reasonably practicable, unless other arrangements are reasonably acceptable to GW, Bidco and Jazz, that GW ADSs will be treated by the Depositary, as closely as reasonably possible, in the same manner as GW ordinary shares are treated by the exchange agent with respect to treatment of fractional shares and other relevant matters specified in the Transaction Agreement. GW intends to instruct Nasdaq to halt trading of GW ADSs before the open of trading on the date of the Court Sanction Hearing. Accordingly, because GW expects that the last day of trading of the GW ADSs on Nasdaq will be the trading day prior to the closing date, the persons entitled to the ADS deliverables will not be known until the first trading day following the closing date, which is the date that any trades made on the trading day prior to the closing date will settle. If, however, the last day of trading of the GW ADSs on Nasdaq is the closing date, the persons entitled to the ADS deliverables will not be known until the second trading day following the closing date, which is the date that any trades made on the closing date will settle. If the parties reasonably deem necessary in furtherance of the establishment of such procedures, GW will enter into one or more amendments to the Deposit Agreement that are reasonably acceptable to the Depositary, GW and Bidco, and GW, Jazz and Bidco will deliver any certificates and opinions of counsel reasonably requested by the Depositary in connection therewith. The GW ADS holders will bear all fees, charges and expenses that they are required to bear under the Deposit Agreement in connection with the Transaction, the cancellation of GW ADSs and the receipt of the ADS deliverables. No interest will be paid or accrued on any amount payable in respect of GW ADSs.

Each GW ADS holder entitled thereto will receive (upon surrender of their GW ADSs to the Depositary, if their GW ADSs are in certificated form) their pro rata portion of the aggregate ADS cash consideration in U.S. dollars, net of (i) the GW ADS Fees and (ii) applicable withholding taxes. GW ADS holders who hold their GW ADSs in certificated form will, on or after the closing date, receive letters of transmittal with an explanation on how to surrender the GW ADSs to the Depositary. Those holders must sign and return the letter of transmittal, together with their GW ADS certificates, to receive any ADS deliverables to which they are entitled. GW ADS holders

 

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who hold their GW ADSs in uncertificated form will automatically receive the net per ADS cash consideration (net of the GW ADS Fees and applicable withholding taxes) and the per ADS share deliverable to which they are entitled and do not need to take any further action. Payments to GW ADS holders will be made by checks mailed by the Depositary to the address the Depositary has in its records for such GW ADS holder. The per ADS share deliverable (except for fractional entitlements) will be delivered in uncertificated form to the GW ADS holders of record.

Any GW ADS holders who hold their GW ADSs indirectly through a broker, bank, trust company or other nominee within DTC, will receive credit of the funds and Jazz ordinary shares to their account from their broker, bank, trust company or other nominee. The Depositary will remit the applicable funds (net of the GW ADS Fees and applicable withholding taxes) to DTC, and DTC will, in turn, credit the GW ADS holder’s broker, bank, trust company or other nominee.

The settlement of the ADS deliverables is governed by the terms of the Transaction Agreement and the Deposit Agreement and is a matter that is external to the Scheme of Arrangement. As set out in the Scheme of Arrangement, neither Bidco nor any member of the Bidco Group nor the exchange agent nor GW shall have any responsibility or liability under the Scheme of Arrangement for the onwards distribution or transmission to the holders of GW ADSs, or to any other person, of the scheme deliverables due to the Depositary (or any nominee or custodian of the Depositary which is the relevant Scheme Shareholder), albeit that the foregoing does not affect GW’s obligations under the Deposit Agreement or any party’s obligations under the Transaction Agreement.

 

10.

Overseas GW Shareholders

The availability of the Scheme of Arrangement and the transaction deliverables to overseas GW shareholders may be affected by the laws of the relevant jurisdictions. Overseas GW shareholders should inform themselves about, and should observe, any applicable legal requirements. It is the responsibility of all overseas GW shareholders to satisfy themselves as to their full compliance with the laws of the relevant jurisdiction, including obtaining any governmental, exchange control or other consents which may be required and their compliance with any other necessary formalities which are required to be observed and the payment of any issue, transfer or other taxes due in such jurisdiction. If you are in any doubt regarding such matters, you should consult an independent professional adviser in the relevant jurisdiction without delay.

Overseas GW shareholders should consult their own legal and tax advisers with respect to the legal and tax consequences of the Transaction in their particular circumstances.

Without prejudice to the generality of the foregoing, if, in respect of any Scheme Shareholder with a registered address in a jurisdiction outside Ireland, the United Kingdom or the United States, Bidco, any member of the Bidco Group, or the exchange agent is advised that the delivery of the Jazz ordinary shares would or might infringe upon the laws of such jurisdiction or would require Bidco, any member of the Bidco Group, the exchange agent or GW to observe any governmental or other consent or any registration, filing or other formality with which Bidco, any member of the Bidco Group, the exchange agent or GW (as the case may be) would be unable to comply, or compliance with which by such person is regarded by such person or by Bidco (in the case of Bidco, acting reasonably) as unduly onerous, the exchange agent may, in consultation with Bidco, determine that the Jazz ordinary shares shall not be delivered to such Scheme Shareholder and that (i) such Jazz ordinary shares shall instead be sold by the exchange agent at the best price which can reasonably be obtained in the market at the time of sale and (ii) the net proceeds of such sale (after the deduction of any expenses and commissions incurred in connection with such sale, including any amounts in respect of tax including any value added tax payable thereon, without interest) shall be delivered by the exchange agent to the relevant Scheme Shareholder in accordance with the relevant provisions of the Scheme of Arrangement rounded up or down to the nearest U.S. cent.

 

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11.

Action to be taken

The approval required for the Scheme Proposal at the Court Meeting is a simple majority in number of the GW ordinary shareholders present and voting (and entitled to vote) remotely (via the Virtual Meeting Platform) or by proxy, representing at least 75% in value of the GW ordinary shares in respect of which a vote has been cast.

The approval required for the Scheme Implementation Proposal at the General Meeting is approval by at least 75% of the votes cast by GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy.

The approval required for the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements at the General Meeting is approval by a simple majority of the votes cast by GW ordinary shareholders present and voting (and entitled to vote), either remotely (via the Virtual Meeting Platform) or by proxy.

If the Scheme of Arrangement becomes effective it will be binding on all holders of Scheme Shares irrespective of whether or not they attended or voted at the Court Meeting or the General Meeting.

Forms of proxy

Each copy of this proxy statement mailed to holders of GW ordinary shares is accompanied by two forms of proxy with instructions for voting. The blue form of proxy corresponds to the Court Meeting and the yellow form of proxy corresponds to the General Meeting. If you hold GW ordinary shares in your name as a shareholder of record, you should complete and return both proxy cards accompanying this proxy statement to ensure that your vote is counted at both of the Shareholder Meetings, or at any adjournment or postponement of the Shareholder Meetings, regardless of whether you plan to attend the Shareholder Meetings, so as to arrive as soon as possible but in any event at least 48 hours before the relevant meeting (excluding any part of such 48 hour period falling on a weekend or public holiday in the UK). You may also authorize a proxy to vote your shares online or electronically as set out in full on the proxy cards.

If the blue form of proxy relating to the Court Meeting is not lodged by the relevant time, it may be emailed to post_proxy_deadline_court_votes@linkgroup.co.uk at any time up to the Court Meeting. However, in the case of the General Meeting, if the yellow form of proxy is not lodged so as to be received by the time mentioned above, it will be invalid. The completion and return of either form of proxy will not preclude you from attending the Court Meeting or the General Meeting and voting remotely (via the Virtual Meeting Platform), if you so wish.

If you hold your GW ordinary shares in “street name” through a broker, bank, trust company or other nominee, you must direct your broker, bank, trust company or other nominee to vote in accordance with the instructions you have received from your broker, bank, trust company or other nominee.

The GW Board is not currently aware of any business to be acted upon at the Shareholder Meetings other than the matters described in this proxy statement. If, however, other matters are properly brought before the Shareholder Meetings, the persons appointed as proxies will have discretion to vote or act on those matters as in their judgment is in the best interest of GW and its shareholders, except that GW will comply with any limitations on the exercise of such discretion under applicable law and stock exchange listing rules.

If you hold GW ordinary shares in uncertificated form through CREST and wish to appoint a proxy or proxies for the Court Meeting (or any adjournment thereof) by using the CREST electronic proxy appointment service, you may do so by using the procedures described in the CREST Manual. CREST personal members or other CREST sponsored members, and those CREST members who have appointed any voting service provider(s), should refer to their CREST sponsor or voting service provider(s), who will be able to take the appropriate action on their behalf.

 

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In order for a proxy appointment or instruction made using the CREST service to be valid, the appropriate CREST message (a “CREST Proxy Instruction”) must be properly authenticated in accordance with the specifications of Euroclear and must contain the information required for such instructions as described in the CREST Manual. The message (regardless of whether it constitutes the appointment of a proxy or an amendment to the instructions given to a previously appointed proxy) must, in order to be valid, be transmitted so as to be received by GW’s Registrar (ID: RA10) not later than 48 hours (excluding any part of such 48-hour period falling on a non-working day) before the time fixed for the Court Meeting or any adjournment thereof. For this purpose, the time of receipt will be taken to be the time (as determined by the timestamp applied to the message by the CREST Applications Host) from which the GW’s Registrar is able to retrieve the message by enquiry to CREST in the manner prescribed by CREST. If the CREST proxy appointment or instruction is not received by this time, the blue form of proxy may be emailed to post_proxy_deadline_court_votes@linkgroup.co.uk any time prior to the commencement of the Court Meeting or any adjournment thereof.

CREST members and, where applicable, their CREST sponsors or voting service providers should note that Euroclear does not make available special procedures in CREST for any particular messages. Normal system timings and limitations will therefore apply in relation to the input of CREST Proxy Instructions. It is the responsibility of the CREST member concerned to take (or, if the CREST member is a CREST personal member or sponsored member or has appointed any voting service provider(s), to procure that his/her CREST sponsor or voting service provider(s) take(s)) such action as shall be necessary to ensure that a message is transmitted by means of the CREST system by any particular time. For further information on the logistics of submitting messages in CREST, CREST members and, where applicable, their CREST sponsors or voting service providers are referred, in particular, to those sections of the CREST Manual concerning practical limitations of the CREST system and timings.

GW may treat as invalid a CREST Proxy Instruction in the circumstances set out in Regulation 35(5)(a) of the CREST Regulations.

Currency Elections

Currency Elections by holders of GW ordinary shares in certificated form

Each holder of GW ordinary shares in certificated form as at the Scheme Record Time will receive the cash consideration in US dollars, except as may be validly elected otherwise pursuant to the Currency Conversion Facility. Holders of GW ordinary shares (other than the Depositary) may elect to have the cash consideration paid in British pounds at the Average Market Exchange Rate obtained by Bidco through one or more market transactions over one or more business days following the Scheme Record Time before the relevant payment date under the Currency Conversion Facility, by completing and returning the red Form of Election.

Currency Elections by holders of GW ordinary shares in uncertificated form (that is, in CREST)

Each holder of GW ordinary shares in uncertificated form (that is, in CREST) at the Scheme Record Time will receive the cash consideration in US dollars, except as may be validly elected otherwise pursuant to the Currency Conversion Facility. Holders of GW ordinary shares (other than the Depositary) may elect to have the cash consideration which is payable to them under the Scheme paid in British pounds at the Average Market Exchange Rate obtained by Bidco through one or more market transactions over one or more Business Days following the Scheme Record Time before the relevant payment date under the Currency Conversion Facility (by making the relevant TTE Instruction through CREST).

Each holder of GW ordinary shares in uncertificated form at the Scheme Record Time who does not make a valid Currency Election must ensure that an active US dollar Cash Memorandum Account is in place in CREST by no later than the Scheme Record Time. In the absence of a US dollar Cash Memorandum Account, the payment of the cash consideration will not settle, resulting in a delay and the settlement of the cash consideration outside of CREST by check.

 

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The latest time for Link Group to receive your Form of Election will be 2:00 p.m. (London time) on April 21, 2021 (or, in the case of an adjournment of the Court Meeting, 48 hours (excluding any part of such 48 hour period falling on a non-working day) before the time appointed for the adjourned meeting), being the latest time for receipt by GW’s Registrar of the blue form of proxy for the Court Meeting. You should allow sufficient time for posting for your Form of Election to be received.

The latest time for receipt of a TTE Instruction through CREST (applicable only for holders of GW ordinary shares in uncertificated form and who wish to make an election under the Currency Conversion Facility) will be 2:00 p.m. (London time) on April 21, 2021 (or, in the case of an adjournment of the Court Meeting, 48 hours (excluding any part of such 48 hour period falling on a non-working day) before the time appointed for the adjourned meeting), being the latest time for receipt by GW’s Registrar of the blue form of proxy for the Court Meeting.

Further details on how to submit your Form of Election or making your TTE Instruction are set forth in the section entitled “Notes for Making Currency Elections” beginning on page 165 of this proxy statement.

You are strongly urged to complete and return your forms of proxy as soon as possible, whether or not you intend to attend the Shareholder Meetings via the Virtual Meeting Platform.

GW ADS holders should refer to section 9 of this Explanatory Statement for information relevant to such holders.

 

12.

Further information

The terms of the Scheme of Arrangement are set out in full in the section entitled “The Scheme of Arrangement” beginning on page 120 of this proxy statement. A summary of material tax consequences are set out in the sections entitled “Material United States Federal Income Tax Consequences of the Transaction”, “Material United Kingdom Tax Consequences of the Transaction” and “Material Irish Tax Consequences of the Transaction” beginning on pages 136, 141 and 144, respectively, of this proxy statement. Further information regarding GW, Jazz and Bidco are set out in the section entitled “The Parties to the Transaction” beginning on page 52 of this proxy statement.

 

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THE GENERAL MEETING

Proposal 1—Scheme Implementation Proposal

For the reasons described above, GW is requesting that the GW shareholders adopt the following resolution at the General Meeting, which is a special resolution:

THAT, for the purpose of giving effect to the scheme of arrangement dated March 15, 2021 between GW and the holders of Scheme Shares (as defined in such scheme of arrangement), a print of which has been produced to this meeting and for the purposes of identification signed by the Chair of this meeting, in its original form or with or subject to any modification, addition, or condition as may be agreed from time to time (including, for the avoidance of doubt, after the date of this resolution) between GW, Jazz Pharmaceuticals UK Holdings Limited (“Bidco”) and Jazz Pharmaceuticals Public Limited Company (“Jazz”) and which (if required) is approved by the High Court of Justice of England and Wales (the “Court”), or which is otherwise imposed by the Court and is mutually acceptable to GW, the Bidco and Jazz each acting reasonably and in good faith (the “Scheme”):

 

  (A)

the directors of GW (or a duly authorized committee of the directors) be and are hereby authorized to take all such action as they may consider necessary or appropriate for carrying the Scheme into effect; and

 

  (B)

with effect from the passing of this resolution, the articles of association of GW be and are hereby amended by the adoption and inclusion of the following new article 45:

“45 Scheme of Arrangement

 

  (i)

In this article, references to the “Scheme” are to the Scheme of Arrangement under Part 26 of the UK Companies Act 2006 between the Company and the holders of Scheme Shares dated March 15, 2021 in its original form or with or subject to any modification, addition or condition as may be agreed between the Company, Jazz Pharmaceuticals UK Holdings Limited (“Bidco”) and Jazz Pharmaceuticals Public Limited Company (“Jazz”) and which (if required) is approved by the Court, or which is otherwise imposed by the Court and is mutually acceptable to the Company, Bidco and Jazz each acting reasonably and in good faith and, save as defined in this article, expressions defined in the Scheme shall have the same meanings in this article. Capitalized terms used but not otherwise defined in this article shall have the meanings ascribed to such terms in the Scheme.

 

  (ii)

Notwithstanding any other provision of these articles or the terms of any resolution, whether ordinary or special, passed by the Company in General Meeting, if the Company issues any shares (other than to any member of the Bidco Group or a nominee of any such person (each such person, a “Bidco Company”)) at or after the Voting Record Time but before the Scheme Record Time, such shares shall be issued subject to the terms of the Scheme (and shall be Scheme Shares for the purposes of the Scheme) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly.

 

  (iii)

Subject to the Scheme becoming effective, and notwithstanding any other provision of these articles, if any shares in the Company are issued or transferred to any person other than a Bidco Company (a “New Member”) after the Scheme Record Time (such shares the “Post-Scheme Shares”), such New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) will be obliged, upon the Scheme becoming effective (or, if later, upon the issue or transfer of the Post-Scheme Shares to such New Member), to transfer immediately all of its Post-Scheme Shares free of all encumbrances to Bidco (or to such other person as may be nominated by Bidco) who shall be obliged to acquire (or procure the acquisition by such other person of) all of the Post-Scheme Shares. In exchange for the transfer of the Post-Scheme Shares, Bidco (or such other person as has been nominated by Bidco) shall pay or

 

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  procure the payment to the New Member of the same Cash Consideration and deliver or procure the delivery to the New Member of the same Exchange Shares that the New Member would have been entitled to receive pursuant to the Scheme had each Post-Scheme Share been a Scheme Share.

 

  (iv)

Notwithstanding the provisions of Article 45(iii), if, in respect of any New Member with a registered address in a jurisdiction outside Ireland, the United Kingdom or the United States, any Bidco Company or Bidco is advised that the delivery of Exchange Shares to such New Member pursuant to Article 45(iii) would or might infringe the laws of such jurisdiction or would require any Bidco Company or Bidco to observe any governmental or other consent or any registration, filing or other formality with which any Bidco Company or Bidco (as the case may be) is unable to comply, or compliance with which by such person is regarded by such person or Bidco (in the case of Bidco, acting reasonably) as unduly onerous, Bidco may, in its sole discretion, determine that the relevant Exchange Shares shall not be delivered to such New Member and that (i) such Exchange Shares shall instead be sold at the best price which can reasonably be obtained in the market at the time of sale and (ii) the net proceeds of such sale (after the deduction of all expenses and commissions incurred in connection with such sale, including any amounts in respect of tax including any value added tax payable thereon, without interest and subject to deduction or withholding of any amounts as are required to be deducted or withheld from or with respect to such payment under any Applicable Law) shall be delivered to the relevant New Member.

 

  (v)

The provisions of paragraph 9 of the Scheme in respect of fractional entitlements shall apply, mutatis mutandis, in respect of any Exchange Shares to which New Members are entitled pursuant to Article 45(iii) above (and, for the avoidance of doubt, no New Member shall receive fractions of Exchange Shares).

 

  (vi)

If, after the Effective Time, the Company Ordinary Shares or Jazz Ordinary Shares shall have been changed to, or exchanged for, a different number or class of shares or securities by reason of any stock dividend, bonus issue, scrip dividend, subdivision, reorganization, merger, consolidation, reclassification, redesignation, recapitalization, share split, reverse share split, combination or exchange of shares, or a stock or scrip dividend shall be declared with a record date falling after the Effective Time, or any similar event shall have occurred, then the amount of any Cash Consideration and/or Exchange Shares due to a New Member for each Post-Scheme Share pursuant to Article 45(iii) above shall be adjusted by the directors of the Company in such manner as the auditors of the Company may determine to be appropriate to provide Bidco and the New Members holding any Post-Scheme Share(s) with the same economic effect as contemplated by the Scheme prior to such event. References in this article to shares shall, following such adjustment, be construed accordingly.

 

  (vii)

To give effect to any transfer of Post-Scheme Shares required by this article, the Company may appoint any person as attorney and agent (the “agent”) for the New Member to execute and deliver as transferor a form of transfer or other instrument or instruction of transfer on behalf of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) in favour of Bidco (or such other person as Bidco may nominate) and do all such other things and execute and deliver all such documents as may in the opinion of the agent be necessary or desirable to vest the Post-Scheme Shares in Bidco (or such other person as Bidco may nominate) and pending such vesting to exercise all such rights attaching to the Post-Scheme Shares as Bidco may direct. If an agent is so appointed, the New Member shall not thereafter be entitled to exercise any rights attaching to the Post-Scheme Shares unless so agreed in writing by Bidco, and the Company may send to the agent any notice, circular, warrant or other document or communication which may otherwise be required to be sent to the New Member as a member of the Company.

 

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  (viii)

The Company may give good receipt for the Cash Consideration and Exchange Shares for the Post-Scheme Shares and may register Bidco (or such other person as Bidco may nominate) as holder of the Post-Scheme Shares and issue to it certificate(s) for the same. The agent shall be empowered to execute and deliver as transferor a form of transfer or other instrument or instruction of transfer on behalf of the New Member (or any subsequent holder). The Company shall not be obliged to issue a certificate to the New Member for any Post-Scheme Shares.

 

  (ix)

Bidco shall settle (or procure the settlement) of the Cash Consideration and Exchange Shares within 14 days of the transfer of the Post-Scheme Shares by the New Member to Bidco (or to such other person as Bidco may nominate).

 

  (x)

Notwithstanding any other provision of these articles, neither the Company nor its directors shall register the transfer of any Scheme Shares effected between the Scheme Record Time and the Effective Time (other than to a Bidco Company or a nominee of a Bidco Company pursuant to the Scheme).

 

  (xi)

If the Scheme shall not have become effective by the date referred to in paragraph 12.2 of the Scheme, this article shall be of no effect.”

Vote Required and GW Board Recommendation

Assuming a quorum is present, the Scheme Implementation Proposal will be passed if at least 75% of the votes cast at the General Meeting (remotely via the Virtual Meeting Platform, or by proxy) are cast in favor of this proposal.

Completion of the Transaction is conditioned upon GW shareholder approval of the Scheme Implementation Proposal.

The GW Board unanimously recommends that you vote “FOR” the Scheme Implementation Proposal.

Proposal 2—Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements

In accordance with Section 14A of the Exchange Act, GW is providing GW shareholders with the opportunity to cast a non-binding advisory vote on the compensation that may be paid or become payable to the GW’s named executive officers in connection with the Transaction. As required by those rules, GW is asking GW shareholders to vote on the approval of the following resolution, which is an ordinary resolution:

THAT, the compensation that may be paid or become payable to GW’s named executive officers in connection with the Transaction, as disclosed in the table entitled “Potential Payments to Named Executive Officers” beginning on page 92 of this proxy statement, including the associated narrative discussion, and the agreements or understandings pursuant to which such compensation may be paid or become payable, are hereby approved.”

The vote on this proposal is a vote separate and apart from the Scheme Implementation Proposal. Accordingly, you may vote in favor of the Scheme Implementation Proposal and vote not to approve this proposal and vice versa. Because this proposal is only advisory in nature, it will not be binding on GW or the GW Board. Accordingly, because GW is contractually obligated to pay the compensation, such compensation will be paid or become payable, subject only to the conditions applicable thereto, if the Transaction is consummated and regardless of the outcome of the advisory proposal.

Assuming a quorum is present, the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements will be passed if a simple majority of the votes cast at the General Meeting (remotely via the Virtual Meeting Platform, or by proxy) are cast in favor of this proposal.

The GW Board unanimously recommends that you vote “FOR” the approval of the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements.

 

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THE PARTIES TO THE TRANSACTION

GW Pharmaceuticals plc

GW, a public limited company incorporated in England and Wales, is a global leader in discovering, developing, manufacturing and commercializing novel, regulatory approved therapeutics from its proprietary cannabinoid product platform to address a broad range of diseases. GW ADSs are listed on Nasdaq under the symbol “GWPH”.

GW’s registered offices are located at Sovereign House, Vision Park, Chivers Way, Histon, Cambridge CB24 9BZ, United Kingdom and its telephone number is +44-1223-266-800.

For more information about GW, please visit GW’s Internet website at www.gwpharm.com. GW’s Internet website address is provided as an inactive textual reference only. The information contained on GW’s Internet website is not incorporated into, and does not form a part of, this proxy statement or any other report or document on file with or furnished to the SEC. Additional information about GW is included in the documents incorporated by reference into this proxy statement. See the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement.

Jazz Pharmaceuticals Public Limited Company

Jazz, a public limited company incorporated in the Republic of Ireland, is a global biopharmaceutical company dedicated to developing and commercializing life-changing medicines with a focus in neuroscience, including sleep and movement disorders, and in oncology, including hematologic malignancies and solid tumors. Jazz ordinary shares are listed on Nasdaq under the symbol “JAZZ”.

Jazz’s executive offices are located at Fifth Floor, Waterloo Exchange, Waterloo Road, Dublin 4, Ireland D04 E5W7 and its telephone number is +353-1-634-7800.

For more information about Jazz, please visit Jazz’s Internet website at www.jazzpharma.com. Jazz’s Internet website address is provided as an inactive textual reference only. The information contained on Jazz’s Internet website is not incorporated into, and does not form a part of, this proxy statement or any other report or document on file with or furnished to the SEC. Additional information about Jazz is included in the documents incorporated by reference into this proxy statement. See the section entitled “Where You Can Find More Information” beginning on page 171 of this proxy statement.

Jazz Pharmaceuticals UK Holdings Limited

Bidco, a private limited company incorporated in England and Wales, is an indirect wholly owned subsidiary of Jazz and was formed solely for the purpose of facilitating the Transaction. Bidco has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the Transaction. As a result of the consummation of the Transaction, each issued and outstanding GW ordinary share will be transferred to Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee).

Bidco’s registered offices are located at Wing B, Building 5700, Spires House John Smith Drive, Oxford Business Park South, Oxford, United Kingdom OX4 2RW and its telephone number is +44-1865 405-000.

 

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THE TRANSACTION

Overview

On February 3, 2021, GW entered into the Transaction Agreement with Jazz and Bidco. Under the terms of the Transaction Agreement, subject to the satisfaction or waiver of the conditions set forth therein, Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) will, subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the conditions to the completion of the Transaction, acquire the entire issued and to be issued share capital of GW pursuant to the Scheme of Arrangement, which is a court-sanctioned scheme of arrangement under the Companies Act.

Background of the Transaction

The GW Board regularly evaluates GW’s historical performance, future growth prospects and long-term strategic plan and considers various strategic opportunities available to GW as well as ways to enhance shareholder value and GW’s performance and prospects, including in light of the business, competitive, regulatory, financing and economic environment and developments in GW’s industry. These reviews have included discussions as to whether GW should continue to execute on its strategy as a stand-alone company, pursue various acquisitions or collaborations, seek to improve its capital structure or pursue a sale of the entire company or certain of its assets. As part of these reviews, the GW Board has considered from time to time what would offer the best avenue to enhance shareholder value along with the potential benefits and risks of any potential alternative.

On July 6, 2020, Bruce Cozadd, Chairman and Chief Executive Officer of Jazz, sent Justin Gover, Chief Executive Officer of GW, an unsolicited email asking if Mr. Gover was available for a discussion in the coming days, and the two agreed to hold a video conference on July 8.

On July 8, 2020, Mr. Gover held a video conference with Mr. Cozadd, during which Mr. Cozadd made an unsolicited non-binding proposal for Jazz to acquire GW for $172 per GW ADS in cash, subject to the completion of due diligence and customary transaction documentation. During the call, Mr. Cozadd informed Mr. Gover that Jazz had available cash and lines of credit and had made confidential inquiries to financing sources to access additional financing to support the proposal. Mr. Gover replied that he would discuss Jazz’s proposal with the GW Board and respond to Mr. Cozadd afterwards.

On July 10, 2020, Mr. Gover informed Mr. Cozadd via email that Mr. Gover would discuss the proposal with the rest of the GW Board at its upcoming regularly scheduled meeting on July 16, 2020 and would respond to the proposal in due course thereafter.

On July 16, 2020, the GW Board held a regularly scheduled meeting. During a portion of that meeting, Mr. Gover and the rest of the GW Board met separately with Douglas Snyder, GW’s Chief Legal Officer, and Scott Giacobello, GW’s Chief Financial Officer, to discuss Jazz’s proposal. Mr. Giacobello presented background on Jazz based on public information, including information about its business and certain financial metrics. Mr. Giacobello then reviewed with the GW Board certain forecasts that had been prepared by GW management prior to the receipt of Jazz’s July 8, 2020 proposal as part of its strategic planning process and consideration of available strategic alternatives and related financial analyses. These forecasts are referred to as the “July Forecasts” (as defined and further discussed under “—Certain GW Forecasts” beginning on page 81 of this proxy statement). Next, representatives of GW’s US legal advisors at Cravath, Swaine & Moore LLP (“Cravath”) and GW’s UK legal advisors at Slaughter and May joined the meeting to review the GW Board’s fiduciary duties under UK law and related legal considerations regarding Jazz’s proposal and general matters regarding the acquisition of a company that is incorporated in the UK but listed only in, and managed and controlled from, the US. Following discussion and consideration of the information reviewed and discussed at the meeting, the GW Board expressed confidence in GW’s standalone plan and prospects, and unanimously concluded that Jazz’s non-binding proposal fundamentally undervalued GW and was not likely to promote the

 

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success of GW for the benefit of its shareholders as a whole. The GW Board further concluded that it would not further engage with Jazz unless Jazz made a proposal above $200 per GW ADS or otherwise materially changed the terms of its proposal, noting that $200 per GW ADS merely represented the threshold at which the GW Board would reconvene to discuss a proposal, and was not an indication that the GW Board necessarily viewed a proposal at that price as being the price at which it would engage with Jazz or any other party regarding a transaction. The GW Board directed Mr. Gover to respond to Mr. Cozadd that Jazz’s proposal did not warrant engagement by GW, and gave Mr. Gover authority to respond to any further proposals from Jazz below $200 per GW ADS in a similar manner.

On July 17, 2020, Mr. Gover called Mr. Cozadd to communicate the GW Board’s determination to reject Jazz’s proposal, stating that the GW Board believed that Jazz’s proposal fundamentally undervalued GW, and that the GW Board had confidence in GW’s standalone plan and prospects and that GW was committed to delivering on that plan. Mr. Cozadd indicated that he would be sending a letter reflecting Jazz’s proposal despite the feedback from Mr. Gover.

On July 20, 2020, Mr. Cozadd sent Mr. Gover a letter reflecting Jazz’s prior proposal, indicating that Jazz was willing to consider increasing its proposal if additional non-public information were provided that allowed Jazz to identify value not apparent from publicly available information. The letter also requested a meeting with Mr. Gover or a very small group of GW senior executives to discuss a limited set of high-level information and indicated Jazz’s willingness to immediately enter into a customary confidentiality agreement to facilitate this exchange of information.

On July 23, 2020, in accordance with the prior direction from the GW Board, Mr. Gover sent Mr. Cozadd a letter rejecting Jazz’s written proposal, stating that the GW Board had unanimously concluded the prior week that the proposal fundamentally undervalued GW and its prospects, and that Jazz’s written proposal did not affect this conclusion.

On August 13, 2020, Mr. Cozadd sent Mr. Gover a letter with a revised non-binding proposal on behalf of Jazz, increasing the price to $187 per GW ADS in cash and repeating the requests from the July 20 letter for the parties to enter into a confidentiality agreement and arrange a meeting between their respective chief executive officers or a group of senior executives. The letter did not indicate whether Jazz would be willing to consider increasing its proposal on the basis of its requested due diligence on GW.

Shortly thereafter, the revised Jazz proposal was circulated to the full GW Board and Mr. Gover informed them that he would be rejecting the proposal in accordance with their prior direction. Mr. Gover also contacted representatives of Goldman Sachs and Centerview and engaged each as GW’s financial advisor, subject to the GW Board’s ultimate approval of each engagement and its terms.

On August 21, 2020, Mr. Gover called Mr. Cozadd to reject the revised proposal for the same reasons stated in GW’s July 23 letter, and stated that the GW Board did not believe the proposal provided a basis for discussions among the parties. Mr. Gover sent Mr. Cozadd a letter to this effect after the call. On the call, Mr. Gover also informed Mr. Cozadd that the GW Board had authorized him to reject any proposals with a value of $200 per GW ADS or less.

On September 11, 2020, Mr. Cozadd called Mr. Gover to reiterate Jazz’s non-binding proposal to acquire GW for $187 per GW ADS in cash, but indicated that Jazz was willing to consider a further increase to its proposal if GW would allow Jazz to conduct limited due diligence on certain high-priority items under a confidentiality agreement, including by arranging a meeting of a very small group of senior executives, which Jazz was prepared to complete promptly and efficiently. Mr. Cozadd indicated that this process would enable Jazz to identify any additional upside it could deliver to GW shareholders before engaging in final due diligence. Mr. Cozadd sent Mr. Gover a letter to this effect after the call.

 

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On September 15, 2020, the GW Board met with Mr. Snyder and Mr. Giacobello to discuss Jazz’s proposal and letters of August 13 and September 11. The GW Board discussed that it did not believe there had been any material changes regarding GW since the July 16, 2020 meeting that would warrant engaging with Jazz regarding a transaction at the latest value proposed. After discussion, the GW Board unanimously determined to reject the proposal.

On September 17, 2020, Mr. Gover called Mr. Cozadd to reject Jazz’s proposal, stating the GW Board continued to believe the proposal fundamentally undervalued GW and its prospects and that it provided an inadequate basis for discussions. Mr. Gover sent Mr. Cozadd a letter to this effect after the call.

In October 2020, GW engaged Radford, the independent compensation consultant of the Remuneration Committee of the GW Board (the “Remuneration Committee”), to review GW’s severance plans and programs, relating to both change in control and non-change in control scenarios, and to make recommendations regarding potential changes to those plans and programs to resolve certain internal and geographical inconsistencies and to bring these plans and programs in line with current market practices for peer companies. The determination to engage Radford for this matter was not made in contemplation of any particular transaction, whether with Jazz or any other party.

On December 1, 2020, Mr. Cozadd sent Mr. Gover a letter increasing Jazz’s non-binding proposal to $205 per GW ADS in cash, representing a 46% premium to the closing price per GW ADS on Nasdaq of $139.92 on November 30, 2020, the last trading day prior to the submission of the proposal.

On December 8, 2020, the GW Board met with Mr. Snyder and Mr. Giacobello and representatives of Goldman Sachs, Centerview, Cravath and Slaughter and May to discuss the revised Jazz proposal and potential next steps. Representatives of Goldman Sachs and Centerview reviewed the history of GW’s interactions with Jazz to date, GW’s trading history, Jazz’s financial and operational profile and trading history and Jazz’s likely motivations for pursuing the transaction. The GW Board and the representatives of Goldman Sachs and Centerview engaged in a discussion of Jazz’s ability to finance an acquisition of GW at the currently proposed and potentially higher prices. Representatives of Goldman Sachs and Centerview expressed their views that, while Jazz could finance the transaction at the current proposed price and likely had some additional capacity, the current proposal was approaching the higher end of the range of all-cash transactions that Jazz would likely be able to finance, given Jazz’s balance sheet and credit ratings considerations. The GW Board and representatives of Goldman Sachs and Centerview also discussed ways in which Jazz might be able to raise additional equity capital to finance an acquisition or include a stock component in the transaction deliverables in the transaction.

The GW Board and representatives of Goldman Sachs and Centerview then reviewed whether other parties might be interested in a potential acquisition of GW, and representatives of Goldman Sachs and Centerview expressed their view that there were few third parties that would both likely be interested in an acquisition of GW and have the capacity to complete a transaction at the price currently proposed by Jazz, and that they believed that affirmative third party outreach would be unlikely to result in a proposal providing equivalent or higher value than the Jazz proposal. At the GW Board’s request, representatives of Cravath and Slaughter and May described the legal considerations regarding the determination of whether to engage in third-party outreach under the circumstances, following which a discussion among the GW Board, GW management and the advisors ensued regarding the advantages and disadvantages of outreach to third parties, including the potential risk of leaks and the risk of losing a potential transaction with Jazz were a leak to occur.

A discussion then ensued regarding how Jazz was valuing GW’s pipeline assets, and whether there were structural alternatives, such as a spin-off or contingent value right, that could provide more value to GW’s shareholders for such assets if Jazz was not ascribing sufficient value to them. Representatives of the financial and legal advisors explained the complexities and, for spin-offs in particular, potential for delay associated with these structures, but stated that they would conduct further analysis to be presented to the GW Board at the next meeting. The GW Board excused its advisors and continued its discussion, determining that it required valuation

 

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analyses from Goldman Sachs and Centerview in order to further inform the manner in which it wanted to respond to Jazz’s then-current proposal, and that it would meet again with GW management and the advisors once the valuation analyses had been prepared.

On December 13, 2020, the GW Board met with Mr. Snyder and Mr. Giacobello and representatives of Goldman Sachs, Centerview, Cravath and Slaughter and May to continue the discussion regarding Jazz’s proposal and potential next steps. Mr. Gover noted that, at the GW Board’s request, management had updated the July Forecasts and provided the updated forecasts to the financial advisors for use in their financial analyses. These updated forecasts are referred to as the “December Forecasts” (as defined and further discussed under “—Certain GW Forecasts” beginning on page 81 of this proxy statement). A discussion ensued among GW management and the GW Board regarding the December Forecasts, and how the December Forecasts and the July Forecasts and the key underlying assumptions for each differed. Representatives of Goldman Sachs and Centerview then presented their respective preliminary financial analyses of GW based upon the December Forecasts, and discussion ensued regarding the analyses, the drivers and assumptions underlying them and various sensitivities presented by each financial advisor. The GW Board noted that Jazz had increased its offer on numerous occasions without having been provided access to non-public information regarding GW, and that it may be difficult to get Jazz to increase further without giving Jazz some amount of due diligence access. The GW Board also discussed the advantages and disadvantages of engaging with Jazz (as opposed to waiting to see how GW continued to perform in the short-to-medium term) and the likelihood of Jazz being able to increase its proposal in light of its financing requirements and leverage constraints. During this discussion, representatives of Goldman Sachs and Centerview reiterated their views, discussed during the December 8 meeting, that Jazz was likely very motivated to pursue the acquisition and that Jazz might have the ability to increase its offer further, but that Jazz was unlikely to be able to increase its offer materially further on an all-cash basis due to leverage constraints. The GW Board also discussed whether Jazz was an appropriate strategic fit for GW, including whether Jazz was primarily motivated by acquiring Epidiolex and the level of Jazz’s appreciation for and commitment to GW’s pipeline and research and development priorities. Mr. Gover indicated that based on his conversations with Mr. Cozadd, Jazz appeared to share similar vision, values and priorities to those of GW and value GW’s pipeline and research and development organization.

The GW Board, GW management and the advisors also discussed considerations regarding spin-offs and contingent value rights, including the complexities of these alternatives and the likelihood that Jazz would not be willing to consider these alternative structures in light of its repeated price increases to date. In response to a request from the GW Board, representatives of Goldman Sachs and Centerview reiterated their view that there were few third parties that would both likely be interested in an acquisition of GW and have the capacity to complete a transaction at the price currently proposed by Jazz, and that they believed that affirmative third-party outreach would be unlikely to result in a proposal providing equivalent or higher value than the Jazz proposal. The GW Board concluded that it would first decide whether it wanted to engage with Jazz and could revisit third-party outreach at a later time as appropriate. After excusing the financial advisors, the GW Board discussed potential response alternatives with Cravath and Slaughter and May, then excused the legal advisors to continue the discussion. The GW Board discussed that it would like to see if Jazz would be willing to further increase its price, but that Jazz was at a price level that was close to that which could warrant further engagement. After discussion, the GW Board determined that Mr. Gover should respond to Jazz’s proposal by indicating that while the proposal was not sufficient, GW would not be averse to engaging in discussions with Jazz if Jazz were to make a more compelling proposal, and that Mr. Gover was authorized to provide Jazz with high-level non-public due diligence information if Mr. Gover deemed it advisable to facilitate an increase in Jazz’s current proposal.

On December 15, 2020, Mr. Gover called Mr. Cozadd to convey the GW Board’s rejection of the Jazz proposal. Mr. Gover indicated that the GW Board might be willing to pursue a transaction if Jazz could meaningfully improve upon its proposal further, indicating that $215 per GW ADS would not be acceptable to the GW Board, but that he believed that the GW Board would likely be in support of a transaction at $220 per GW ADS. Mr. Cozadd asked if Mr. Gover would be willing to arrange a high-level discussion among senior executives of

 

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GW and Jazz regarding a few key diligence areas in order to enable Jazz to evaluate further increasing its proposal.

On December 17, 2020, Mr. Gover confirmed to Mr. Cozadd that he and Mr. Snyder would be willing to engage in a high-level diligence call with a view towards providing non-public information regarding GW so that Jazz could further improve upon its proposal.

Later on December 17, 2020, Mr. Cozadd sent Mr. Gover a list of topics for discussion on the high-level diligence call, as well as a draft confidentiality agreement to cover any non-public information regarding GW discussed on the call. The draft confidentiality agreement did not contain a number of terms which would customarily be included in a confidentiality agreement of this type, including a standstill and employee non-solicitation provisions.

On December 18, 2020, GW executed the confidentiality agreement in the form provided by Jazz on the understanding that it was intended to cover solely the information to be discussed on the high-level diligence call, and that if there were ultimately a basis to proceed further in discussions, GW would expect to enter into a more appropriate confidentiality agreement, including one with standstill and employee non-solicitation provisions.

On December 22, 2020, Mr. Gover and Mr. Snyder held the high-level due diligence call with Mr. Cozadd and other members of Jazz management.

On December 23, 2020, Mr. Cozadd called Mr. Gover to convey that the Jazz Board had authorized Jazz to increase its proposal to $220 per GW ADS, consisting of $200 in cash with the remainder in Jazz ordinary shares and that Jazz had been in discussions with a reputable financial institution to arrange the financing for the cash portion of the consideration. Mr. Cozadd explained that Jazz did not believe that the inclusion of a stock component in the transaction deliverables would have any impact on the timing for completing the transaction, and that no Jazz shareholder vote would be required in connection with the revised proposal. Mr. Cozadd also requested that GW agree to a period of exclusivity with Jazz to facilitate Jazz’s due diligence and the negotiation of definitive documentation. Mr. Gover said he would discuss the revised proposal with the GW Board, but rejected the request for exclusivity.

On December 29, 2020, the GW Board met with Mr. Snyder and Mr. Giacobello and representatives of Goldman Sachs, Centerview, Cravath and Slaughter and May in order to discuss Jazz’s revised proposal and potential next steps. After Mr. Gover provided an overview of developments since the December 13 meeting, representatives of Goldman Sachs and Centerview discussed with the GW Board certain financial metrics relating to the revised proposal, noting that the $220 per GW ADS price represented an implied 90% premium to the closing price per GW ADS on Nasdaq of $115.91 on December 28, 2020, the last trading day prior to the meeting, and an implied equity value of approximately $7 billion. Representatives of Goldman Sachs and Centerview also discussed with the GW Board certain value considerations relating to the inclusion of Jazz ordinary shares as part of the transaction deliverables, potential ways Jazz could provide price protection on the stock component of the transaction deliverables, the expected liquidity of the Jazz ordinary shares for GW shareholders post-closing and the likelihood that the inclusion of the stock component of the transaction deliverables signaled that Jazz had reached the limit to what it was willing or able to pay in cash. Representatives of Cravath and Slaughter and May reviewed how the introduction of a stock component to the transaction deliverables might affect the process of and timing for the transaction. A discussion ensued regarding the revised proposal in light of GW’s stand-alone prospects, the preliminary valuation analyses presented by the financial advisors at the December 13 meeting, the addition of the stock component of the transaction deliverables, and the potential advantages and disadvantages at this point in third-party outreach, following which the representatives of Goldman Sachs and Centerview left the meeting.

Following further discussion with its legal advisors, the GW Board concluded that the risks associated with third-party outreach, in particular the risk of leaks, outweighed the potential benefits, and therefore that GW should not engage in third-party outreach, following which the representatives of Cravath and Slaughter and May left the

 

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meeting. Following further discussion of the revised proposal and the information and material presented by its financial and legal advisors, the GW Board unanimously concluded that the Jazz proposal was compelling in light of GW’s standalone prospects and that, subject to Jazz providing an acceptable level of price protection on the stock component of the transaction deliverables and the negotiation of satisfactory non-financial terms for the transaction, Jazz’s proposal was likely to promote the success of GW for the benefit of its shareholders as a whole. Given this conclusion, the GW Board directed GW management to engage in further discussions with Jazz regarding its proposal and instructed Mr. Gover to explore whether Jazz would be willing to provide price protection for the stock component of the transaction deliverables by either fixing the exchange ratio between GW ADSs and Jazz shares at closing of the transaction (rather than at signing), or in the form of a collar mechanism. The GW Board also authorized management to make due diligence material available to Jazz and commence negotiations of definitive documentation for the transaction, and instructed management to keep the GW Board informed as discussions progressed.

Later on December 29, 2020, Mr. Gover held a call with Mr. Cozadd and indicated that while the GW Board was willing to move forward to due diligence and negotiation of definitive documentation on the basis of Jazz’s most recent proposal, the GW Board needed a level of certainty on the value of the stock component of the transaction deliverables. Mr. Gover proposed that the exchange ratio between GW ADSs and Jazz ordinary shares be fixed at closing of the transaction (rather than at signing). Mr. Cozadd responded that he would consider this proposal, but that he believed the Jazz Board would be more amenable to a traditional collar mechanism in order to provide protection to GW shareholders regarding the trading price of Jazz stock between signing and closing of the transaction.

On December 31, 2020, Mr. Gover held a video conference with Mr. Cozadd, on which Mr. Cozadd indicated that, after discussing with the Jazz Board, Jazz was willing to provide some price protection on the stock component of the transaction deliverables in the form of a collar structure. Mr. Cozadd suggested that the parties’ respective financial advisors agree on the details of the collar. According to the prior authority provided to him by the GW Board, Mr. Gover indicated that GW would move forward on this basis and provide due diligence information and begin negotiation of definitive documentation. Mr. Cozadd next reiterated his prior request for exclusivity, which Mr. Gover declined. Mr. Cozadd also proposed a three-to-four week period for due diligence and negotiation of definitive documentation. Before the call concluded, Mr. Cozadd and Mr. Gover agreed that it was important to discuss the future organization and to ensure that the combined company retained talent and was in a position to deliver future success, and also agreed that Jazz’s initial due diligence would be targeted at high-priority items, and that only once those high-priority items were satisfactorily completed would GW permit Jazz to conduct full due diligence.

Later on December 31, 2020, Mr. Gover sent Mr. Cozadd a draft amended and restated confidentiality agreement prepared by GW’s legal advisors, which included a customary standstill provision.

On January 1, 2021, Neena Patil, Jazz’s General Counsel, sent Mr. Gover and Mr. Snyder a list of the high-priority diligence topics that Jazz proposed to cover in a series of meetings with members of GW management and relevant advisors during the next several days.

On January 2, 2021, Ms. Patil sent Mr. Snyder a revised confidentiality agreement reflecting Jazz’s comments, and from that time until January 5, representatives of Wachtell, Lipton, Rosen & Katz (“Wachtell”), US counsel to Jazz, and Cravath negotiated the terms of the confidentiality agreement. During the course of those negotiations, the representatives of Wachtell and Cravath discussed the structure of a definitive transaction agreement and the use of a UK scheme of arrangement structure to effect the acquisition of the issued and to be issued GW share capital.

On January 2 and 3, 2021, representatives of Goldman Sachs and Centerview held a series of calls with representatives of Evercore Group L.L.C (“Evercore”) and Guggenheim Securities, LLC (“Guggenheim”), financial advisors to Jazz, to discuss the nature of the price protection on the stock component of the

 

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transaction deliverables, with the financial advisors agreeing to a 10% symmetrical collar mechanism on the second day of these discussions.

On January 4, 2021, Mr. Gover held a call with Mr. Cozadd and another member of Jazz management, on which Mr. Gover provided additional high-level information regarding GW, focused on organizational, employee and culture matters. Following the call, Mr. Cozadd sent Mr. Gover Jazz’s remaining business and legal due diligence requests.

On January 5, 2021, Jazz and GW executed the amended and restated confidentiality agreement.

Between January 5 and January 8, 2021, members of GW and Jazz management and their respective legal representatives held a series of due diligence meetings covering Jazz’s high-priority diligence topics.

On January 8, 2021, the Remuneration Committee met with members of GW management and representatives of Cravath to consider certain topics that the Remuneration Committee typically considers at the beginning of each year, such as GW’s incentive compensation programs and general compensation planning for 2021. The Remuneration Committee also discussed Radford’s recommendations regarding (1) GW entering into a new employment agreement with Mr. Gover, a topic that had been discussed periodically since Mr. Gover’s relocation to the United States in July 2015, to bring the terms of his employment in line with current market practice for US-based executives and (2) changes to GW’s severance plans and programs to resolve certain internal and geographical inconsistencies and to bring these plans and programs in line with current market practices for peer companies. Representatives of Cravath also discussed with the Remuneration Committee how these items might be impacted by a transaction with Jazz, as well as other compensation and benefits matters that might be implicated in a transaction with Jazz.

On January 10, 2021, Mr. Gover and Mr. Cozadd held a call to discuss Jazz’s progress on diligence in the prior week and next steps, and discussed scheduling and additional due diligence sessions for the following week.

Between January 11 and January 13, 2021, representatives of GW and Jazz and their advisors engaged in due diligence activities with respect to Jazz’s high-priority due diligence items, including a due diligence session on January 13, 2021.

On January 14, 2021, the Remuneration Committee met again with members of GW management and representatives of Cravath to continue their discussions regarding 2021 compensation matters, such as merit-based compensation changes and 2021 short and long-term incentive program awards, and compensation and benefits matters that might be implicated in a transaction with Jazz. The Remuneration Committee also continued its discussions regarding changes to GW’s severance plans and programs, as recommended by Radford.

On January 15, 2021, Mr. Gover and Mr. Cozadd held a call on which Mr. Cozadd indicated that there were no major outstanding issues on Jazz’s high-priority due diligence items and that Jazz was prepared to move forward towards negotiating definitive documentation and completing its remaining confirmatory due diligence with a goal of signing the definitive documentation on February 7 or 8, and the two agreed that full due diligence would commence on January 18 with GW opening a more expansive virtual dataroom to Jazz at that time. Mr. Cozadd again requested an exclusivity period, which Mr. Gover rejected. Mr. Cozadd indicated that Jazz and its counsel were working on a draft transaction agreement and would send the draft to GW and its counsel in the near term.

Later on January 15, 2021, representatives of Wachtell sent representatives of Cravath a draft exclusivity letter consistent with Mr. Cozadd’s description.

On January 18, 2021, GW made a virtual dataroom for the transaction available to Jazz and its representatives, containing information and documents responsive to Jazz’s outstanding due diligence requests. Between January 18, 2021 and the signing of the transaction agreement, Jazz and its representatives submitted further

 

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confirmatory due diligence requests and engaged in numerous discussions with GW and its representatives relating thereto, and GW continued to make additional responsive information and documents available to facilitate Jazz’s due diligence exercise.

Later on January 18, 2021, a representative of Wachtell called a representative of Cravath to get an update on GW’s position regarding the request for exclusivity. During the discussion, the representative of Cravath stated that GW did not believe exclusivity was appropriate at the time.

On January 19, 2021, Mr. Gover and Mr. Cozadd held a call, during which Mr. Cozadd again requested that GW agree to exclusivity. Mr. Gover again declined the request.

Later on January 19, 2021, representatives of Wachtell sent a draft transaction agreement to representatives of Cravath.

On January 22, 2021, representatives of Macfarlanes LLP, UK counsel to Jazz (“Macfarlanes”), sent initial drafts of the forms of scheme of arrangement and related shareholder resolutions to Slaughter and May. From that time until the signing of the Transaction Agreement, representatives of Slaughter and May and Macfarlanes negotiated the terms of these documents (forms of which are annexed to the Transaction Agreement) and held multiple discussions relating thereto.

On January 24, 2021, representatives of Cravath sent a revised draft transaction agreement to representatives of Wachtell and Macfarlanes. From that time until the signing of the Transaction Agreement, the parties’ respective legal advisors negotiated the terms of the Transaction Agreement and held a number of discussions relating thereto.

On January 25, 2021, the Remuneration Committee convened again with members of GW management and representatives of Cravath to discuss certain topics, including the adoption of a company-wide severance program as had been recommended by Radford and discussed at previous meetings, matters relating to GW’s incentive programs and other employee benefits matters relating to the proposed transaction with Jazz. After discussion, the Remuneration Committee authorized senior management and representatives of Cravath to discuss and negotiate these matters with Jazz and its representatives. Mr. Gover and Mr. Cozadd, as well as representatives of Cravath and Wachtell, negotiated these matters from January 26 through February 2. It was during these conversations that Mr. Cozadd made the request that members of GW management remain with the combined company after the completion of the transaction, some on a transitional basis and some on a more long-term basis, with Mr. Gover remaining for a transitional period.

Later on January 25, 2021, representatives of Goldman Sachs and Centerview held a call with representatives of Evercore and Guggenheim, who confirmed that Jazz had finalized the financial terms of its committed financing for the transaction, subject to final agreement on the relevant definitive documentation.

On January 28, 2021, the GW Board met with members of GW management and representatives of Goldman Sachs, Centerview, Cravath and Slaughter and May for an update on the status of the transaction. Mr. Gover and Mr. Snyder provided an overview of Jazz’s main areas of diligence focus, and noted that, given the stock component of the transaction deliverables, GW and its advisors were also going to conduct due diligence on Jazz. Representatives of Goldman Sachs and Centerview provided an update on various financial metrics with respect to Jazz’s proposal that they had previously presented to the GW Board. Next, representatives of Slaughter and May reviewed the fiduciary duties of the GW Board generally and in the context of the transaction. Representatives of Cravath and Slaughter and May then reviewed the key terms of the draft transaction agreement, scheme of arrangement and shareholder resolution based on the discussions to date, including (1) the structure of the transaction as a scheme of arrangement under UK law; (2) the transaction deliverables and the 10% symmetrical collar mechanism and how it would be calculated based on a volume weighted average trading price of the Jazz ordinary shares on Nasdaq over a to-be-determined measurement period ending four days prior

 

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to the closing date using an initial exchange ratio that would be set prior to the signing of the transaction agreement in a manner to be agreed; (3) the closing conditions for the transaction and the terms of the marketing period that would be afforded to Jazz to permit it to syndicate its debt financing; (4) the regulatory clearances required for the transaction and the efforts that the parties would be required to use to obtain these clearances; (5) the terms relating to GW Board’s ability to respond to unsolicited competing acquisition proposals; (6) the termination rights of each party; and (7) the amount of, and triggers for, the termination fee payable by GW in certain circumstances following the termination of the transaction agreement, and a discussion ensued. Next, representatives of Cravath reviewed the employee compensation and benefits matters that were being negotiated in consultation with the Remuneration Committee of the GW Board, including those matters that affected executive management and other employees. Throughout these discussions, representatives of Cravath and Slaughter and May noted the key points that remained subject to negotiation, the parties’ current positions on each of these points and the range of potential outcomes, and received direction from the GW Board on acceptable resolutions for each point. The representatives of Cravath and Slaughter and May also reviewed an illustrative timeline for the transaction.

The representatives of Goldman Sachs and Centerview were then excused and the GW Board and management discussed the progress made on the transaction to date, and the potential timetable for a transaction signing and closing. The representatives of Cravath and Mr. Gover then reviewed the terms of the engagement letters that had been negotiated with each of Goldman Sachs and Centerview, including a review of certain relationships between each of Goldman Sachs and Centerview and certain of their respective affiliates, on the one hand, and GW and Jazz and certain of their respective affiliates, on the other hand, that the financial advisors had disclosed to GW, and the GW Board unanimously approved the execution of the engagement letters.

On January 29, 2021, representatives of Wachtell sent an initial draft of the commitment letter for Jazz’s debt financing to representatives of Cravath. From this time until their execution concurrently with the execution of the Transaction Agreement, representatives of Cravath, Wachtell and counsel for Jazz’s financing sources negotiated the terms of the commitment documents and held multiple discussions relating thereto.

Later on January 29, 2021, members of GW and Jazz management and their respective legal and financial advisors held a business and legal due diligence session regarding Jazz. From January 29, 2021 through February 2, 2021, Jazz responded to other due diligence requests made by GW and its advisors in connection with GW’s due diligence review of Jazz and the stock component of the transaction deliverables.

On February 1, 2021, Mr. Gover and Mr. Cozadd held a call on which they agreed to use Jazz’s closing price on Nasdaq on that date for purposes of establishing the initial exchange ratio and the bounds of the 10% symmetrical collar mechanism, agreed to use a 15-trading-day measurement period for purposes of applying the collar mechanism prior to closing and continued discussions regarding the treatment of GW’s incentive programs and other employee benefits programs in connection with the transaction.

On February 2, 2021, representatives of Cravath, Slaughter and May, Wachtell and Macfarlanes held a call to discuss the open points in the draft transaction agreement and to substantially finalize the terms of the definitive documentation in advance of the board meetings that each of GW and Jazz had scheduled later that day to consider the approval of the transaction.

Later on February 2, 2021, the GW Board met with members of GW management and representatives of Goldman Sachs, Centerview, Cravath and Slaughter and May in order to review and potentially approve the execution of the transaction agreement. Representatives of Goldman Sachs reviewed with the GW Board Goldman Sachs’ financial analysis of the transaction deliverables to be delivered to the GW shareholders in the transaction, and rendered to the GW Board Goldman Sachs’ oral opinion, which was subsequently confirmed by delivery of a written opinion dated February 3, 2021, that, as of such date and subject to the factors and assumptions set forth therein, the transaction deliverables to be paid to the holders (other than Jazz and its affiliates) of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) pursuant to the Transaction Agreement was fair from a financial point of view to such holders.

 

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Representatives of Centerview then reviewed with the GW Board Centerview’s financial analysis of the consideration to be received by the GW shareholders in the transaction, and rendered to the GW Board Centerview’s oral opinion, which was subsequently confirmed by delivery of a written opinion dated February 2, 2021, that, as of such date and based upon and subject to the various assumptions made, procedures followed, matters considered, and qualifications and limitations upon the review undertaken in preparing its opinion, the transaction deliverables to be paid to the holders of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than as specified in such opinion) pursuant to the Transaction Agreement was fair, from a financial point of view, to such holders. For a detailed discussion of Goldman Sachs’ opinion and Centerview’s opinion, see the section entitled “—Opinions of Financial Advisors of GW” beginning on page 67 of this proxy statement.

Next, representatives of Cravath and Slaughter and May noted that the transaction agreement and other definitive documentation were in substantially agreed form and reviewed their key terms, including how the key open points reviewed with the GW Board at the prior meeting had been resolved. Next, a representative of Cravath reviewed certain employee compensation and benefits related matters that had previously been discussed, including GW’s ability to implement a company-wide severance program as recommended by Radford and as previously discussed, the timing of GW’s 2021 long-term incentive grants and the treatment of incentive awards and other employee benefit programs in the transaction, as well as certain contractual provisions and incentives that had been negotiated with Jazz so that the senior management team would remain with the combined company for a period deemed critical to the integration, with the members of the Remuneration Committee confirming that the resolution of these matters and negotiated contractual provisions and incentives were consistent with the terms they had discussed. A discussion ensued, during which the GW Board observed that Jazz had demonstrated over the course of discussions that it valued the GW workforce and was carefully considering how to best retain and integrate the GW workforce into its own.

The GW Board then engaged in a discussion regarding the transaction, and the benefits, financial and otherwise, afforded to GW and its shareholders, employees and other constituents from the transaction. The GW Board concluded that the transaction would promote the success of GW for the benefit of its shareholders as a whole, following which the GW Board unanimously (1) determined that it was in the best interests of GW and the GW shareholders for GW to enter into the Transaction Agreement and consummate the Transaction and the other transactions contemplated thereby, (2) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the Transaction and the other transactions contemplated thereby and (3) resolved to recommend that GW shareholders approve the Scheme Proposal at the Court Meeting and approve the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements at the General Meeting.

Following the conclusion of the GW Board meeting on February 2, 2021, representatives of Cravath, Slaughter and May, Wachtell and Macfarlanes finalized the transaction documentation.

On February 3, 2021, prior to the opening of trading on Nasdaq, the parties executed the Transaction Agreement and issued a joint press release announcing the Transaction.

Recommendation of the GW Board; GW’s Reasons for the Transaction

At a meeting held on February 2, 2021, the GW Board unanimously (1) determined that the Transaction would promote the success of GW for the benefit of the GW shareholders as a whole, (2) determined that it was in the best interests of GW and the GW shareholders for GW to enter into the Transaction Agreement and consummate the Transaction and the other transactions contemplated thereby, (3) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the Transaction and the other transactions contemplated thereby and (4) resolved to recommend that GW shareholders approve the Scheme Proposal at the Court Meeting and vote in favor of the Scheme Implementation Proposal and the Non-Binding Advisory Proposal to Approve Certain Compensation Arrangements at the General Meeting.

 

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As described under “—Background of the Transaction”, in evaluating the Transaction, the GW Board consulted with and received the advice of GW’s outside legal and financial advisors, held discussions with GW’s management and considered a number of factors that it believed supported its decision to enter into the Transaction Agreement. These factors included, but were not limited to, the following (not necessarily in order of relative importance):

 

   

the recent and historical trading prices of GW ADSs, as compared to the transaction deliverables, including the fact that the $220 per GW ADS implied transaction deliverables represented a premium of 53% based on the closing price per GW ADS on February 1, 2021 of $144.08 and a premium of 39% based on the highest price per GW ADS during the 52-week period ended February 1, 2021 of $158.47;

 

   

the possibility that the trading price of the GW ADSs, absent the Transaction, would not reach and sustain at least the level implied by the transaction deliverables in the near term, or at all;

 

   

the fact that the cash component of the transaction deliverables to be paid to the GW shareholders, which represents over 90% of the transaction deliverables, would provide immediate liquidity and certainty of value to GW’s shareholders;

 

   

the fact that the share component of the transaction deliverables to be paid to GW shareholders would provide GW shareholders the opportunity to participate in the future earnings and growth potential of the combined company (including to continue to participate in the future earnings and growth potential of the legacy GW products, such as Epidiolex/Epidyolex) and potential future appreciation in the value of Jazz’s ordinary shares following the consummation of the Transaction;

 

   

the fact that the share component of the transaction deliverables is subject to a 10% symmetrical collar mechanism, which helps protect the value of the share component of the transaction deliverables during the pendency of the Transaction;

 

   

the benefits that GW was able to obtain as a result of negotiations with Jazz, including an increase in the price Jazz was willing to offer to acquire GW from $172 per GW ADS in cash in Jazz’s initial non-binding proposal to the final transaction deliverables of $220 per GW ADS in cash and stock, and the GW Board’s belief that this was the highest price per GW ADS that Jazz was willing to pay;

 

   

the relatively small percentage of the average trading volume and outstanding public float of the Jazz ordinary shares represented by the stock component of the transaction deliverables and the GW Board’s corresponding expectation that former GW shareholders would be able to sell the Jazz ordinary shares in the market after the closing of the Transaction, should they choose to, without significantly impacting the trading price of Jazz ordinary shares;

 

   

the potential strategic alternatives available to GW, and the risks associated with pursuing those potential alternatives, including the possibility of remaining a stand-alone entity and the anticipated value that GW’s standalone plan and prospects would deliver to GW’s shareholders;

 

   

the GW Board’s assessment, after considering the advice of its financial advisors, that it was unlikely that a third party would engage in a transaction with GW at the same or better price and other terms offered by Jazz and that the risks associated with third-party outreach outweighed the benefits;

 

   

the GW Board’s understanding of the business operations, financial conditions, earnings and prospects of GW and the GW Board’s views of market competition and the challenges and opportunities facing GW’s industry, which included:

 

   

the risks inherent in the successful commercialization of Epidiolex/Epidyolex, in obtaining marketing approvals for Epidiolex/Epidyolex in additional indications or in additional jurisdictions and in maintaining the scope and extent of GW’s intellectual property and regulatory protections, such as orphan drug exclusivities, for Epidiolex/Epidyolex;

 

   

prospects for GW’s current pipeline, including the risks inherent in the research, development, regulatory review and potential future commercialization of GW’s product candidates, including

 

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nabiximols in the US, and the risks related to market acceptance of these other product candidates, if approved;

 

   

the uncertainty associated with market demand, pricing, governmental reimbursement and other factors beyond the control of GW with respect to Epidiolex/Epidyolex and other product candidates in GW’s pipeline;

 

   

GW’s ability to effectively manage the rapid growth and increasing complexity of its organization and growing and manufacturing capability;

 

   

the risk of competition in the biotechnology and pharmaceutical industry generally; and

 

   

other factors potentially impacting the revenues and profitability of biotechnology and pharmaceutical products and companies generally;

 

   

the separate opinions of Centerview and Goldman Sachs, dated February 2, 2021 and February 3, 2021, respectively, to the GW Board as to the fairness, from a financial point of view and as of the date of the opinions, to the holders of GW ordinary shares (including GW ordinary shares represented by GW ADSs) (other than as specified in such opinions) of the transaction deliverables to be paid to such holders pursuant to the Transaction Agreement, which opinions were based on and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken as set forth in such opinions and as more fully described in the section entitled “—Opinions of Financial Advisors of GW” beginning on page 67 of this proxy statement;

 

   

the GW Board’s assessment that Jazz would support GW’s pipeline and research and development priorities;

 

   

the GW Board’s assessment that Jazz generally shared GW’s vision, values and patient-driven culture;

 

   

the GW Board’s assessment that Jazz had demonstrated that it valued the GW workforce and was carefully considering how to best retain and integrate the GW workforce into its own;

 

   

the GW Board’s assessment of the complementary capabilities of GW and Jazz and the potential strategic and financial benefits to be realized from the combination of the two companies;

 

   

Jazz’s track record in successfully acquiring other companies and integrating past acquisitions;

 

   

the result of GW’s due diligence investigation of Jazz, conducted with the assistance of GW’s advisors, and the reputation, business practices and experience of Jazz and its management;

 

   

the likelihood that the Transaction would be consummated and anticipated timing of closing based on, among other things:

 

   

the absence of a financing condition in the Transaction Agreement;

 

   

the fact that Jazz obtained committed debt financing from reputable financing sources with limited and customary conditionality to funding;

 

   

the limited scope of the conditions to closing, including that no vote of Jazz shareholders is required to consummate the Transaction;

 

   

the level of the commitment by Jazz to obtain applicable regulatory approvals, and the assessment of the GW Board, after considering the advice of its legal advisors, regarding the likelihood of obtaining all required regulatory approvals;

 

   

the scope of what can constitute a Material Adverse Effect under the Transaction Agreement and the exceptions therefrom that were negotiated by GW;

 

   

that GW is entitled to specific enforcement of Jazz’s obligations under the Transaction Agreement; and

 

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other terms of the Transaction Agreement, including, among other things:

 

   

GW’s ability, at any time prior to receipt of the required GW shareholder approvals and under certain circumstances, to consider and respond to an unsolicited alternative acquisition proposal, to furnish non-public information to the person making such a proposal and to engage in discussions or negotiations with the person making such a proposal;

 

   

the GW Board’s ability, under certain circumstances prior to receipt of the required GW shareholder approvals, to withdraw, qualify or modify the GW Board’s recommendation to GW’s shareholders that they vote in favor of the approval of the required GW shareholder approvals or to approve, recommend or otherwise declare advisable an alternative acquisition proposal;

 

   

GW’s ability, under certain circumstances prior to receipt of the required GW shareholder approvals, to terminate the Transaction Agreement in order to enter into an alternative acquisition agreement providing for a superior proposal, so long as GW concurrently with such termination pays to Bidco (or its designee) a termination fee of $71.5 million; and

 

   

the GW Board’s assessment, after considering the advice of its financial and legal advisors, that the termination fee, which represents approximately 1% of the equity value of the Transaction, would not present a meaningful deterrent to a third party from making or consummating an alternative acquisition proposal for GW.

In the course of its deliberations, the GW Board also considered a variety of risks, uncertainties and other countervailing factors related to the Transaction, including but not limited to (not necessarily in order of relative importance):

 

   

the potential upside in GW’s standalone strategic plan;

 

   

the fact that, because approximately 9% of the transaction deliverables is payable in Jazz ordinary shares, GW shareholders will be adversely affected by any decrease in the trading price of Jazz ordinary shares to a level below the 10% symmetrical collar prior to the completion of the Transaction, and may as a result receive less value for their shares upon completion of the Transaction;

 

   

the fact that, because there is 10% symmetrical collar on the share component of the transaction deliverables, GW shareholders may not benefit from increases in the trading price of Jazz ordinary shares within the collar prior to the completion of the Transaction;

 

   

the fact that the transaction deliverables will generally be taxable to GW’s shareholders in the United States, the United Kingdom and Ireland and that, because of the structure of the Transaction, UK chargeable gains “rollover relief” will not be available, even to the extent that GW shareholders receive Jazz ordinary shares as transaction deliverables;

 

   

the potential length and uncertainty of the regulatory approval process and, consequently, the period during which GW will be subject to the operating restrictions in the Transaction Agreement, which could delay or prevent GW from undertaking certain business opportunities that GW would otherwise undertake absent the pending consummation of the Transaction;

 

   

the scope of, and limitations on, Jazz’s commitments to take certain actions and agree to certain conditions in order to obtain required regulatory approvals, including that Jazz is not required to commit to any divestitures or conduct of business restrictions with respect to Epidiolex/Epidyolex or that would have a material adverse effect on Jazz and its subsidiaries (taken as a whole) or GW and its subsidiaries (taken as a whole), and the risk that the required regulatory approvals for the consummation of the Transaction may not be obtained and the Transaction may not be consummated;

 

   

the risk that governmental entities may impose conditions on the combined company that may adversely affect the ability of the combined company to realize the expected benefits of the Transaction;

 

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the risk that the Court sanction process may be delayed and the Court approval of the Transaction may not be obtained;

 

   

the provisions of the Transaction Agreement that restrict GW’s ability to solicit or participate in discussions or negotiations regarding alternative acquisition proposals, subject to certain exceptions, and that require GW to afford Jazz certain match rights prior to GW being able to terminate the Transaction Agreement to accept a superior proposal;

 

   

the fact that in certain circumstances, including if GW terminates the Transaction Agreement to accept a superior proposal or if Jazz terminates the Transaction Agreement as a result of the GW Board changing its recommendation in favor of the Transaction, GW would be required to pay Bidco (or its designee) a termination fee of $71.5 million;

 

   

the significant costs incurred by GW in connection with negotiating and entering into the Transaction Agreement, which, if the Transaction is not consummated, will be borne by GW;

 

   

the fact that the announcement or pendency of the Transaction may impede GW’s ability to retain and hire key personnel and its ability to maintain relationships with its customers, distributors, suppliers and other business partners or its operating results and business generally;

 

   

the fact that matters relating to the Transaction, including integration planning, may require substantial commitments of time and resources by GW’s management and employees and may otherwise divert the attention of management and employees, which may affect GW’s business operations;

 

   

the fact that GW negotiated solely with Jazz rather than conducting a public or private auction or sales process for GW;

 

   

the risks and challenges inherent in the combination of two businesses, including the potential for unforeseen difficulties in integrating operations;

 

   

the fact that, if the Transaction is completed, the Scheme of Arrangement will bind all GW shareholders, including those who did not vote to approve the Scheme Proposal at the Court Meeting;

 

   

the risk of litigation in connection with the Transaction;

 

   

the possibility that, despite the efforts of GW and Jazz, and even if the Scheme Proposal and the Scheme Implementation Proposal are approved by the GW shareholders, the Transaction may be delayed or not occur at all, due to a failure of conditions to closing; and

 

   

various other risks associated with the Transaction and the business of GW, Jazz and the combined company described in the section entitled “Risk Factors” beginning on page 28 of this proxy statement.

In addition, the GW Board was aware of and considered the interests of its directors and executive officers that may be different from, or in addition to, the interests of GW shareholders generally when approving the Transaction Agreement and recommending that GW shareholders vote to approve each of the Proposals. See “—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction” beginning on page 87 of this proxy statement.

The GW Board determined that, overall, these potential risks and uncertainties were outweighed by the benefits that the GW Board expects to achieve for GW shareholders as a result of the Transaction. The GW Board realized that there can be no assurance about future results, including results considered or expected as disclosed in the foregoing reasons.

The foregoing discussion of the information and factors that the GW Board considered is not intended to be exhaustive, but is meant to include the material factors regarding the Transaction that the GW Board considered, which are not necessarily presented in order of relative importance. In light of the complexity and wide variety of factors that the GW Board considered, the GW Board did not find it practical to, and did not attempt to, quantify,

 

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rank or otherwise assign relative or specific weights or values to any of the factors considered and did not undertake to make any specific determinations as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to the ultimate determination of the GW Board. Rather, the GW Board made its recommendation based on the totality of the information available to the GW Board. In addition, individual members of the GW Board may have given different weights to different factors.

The foregoing description of GW’s consideration of the factors supporting the Transaction is forward-looking in nature. This information should be read in light of the factors discussed in the section entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 26 of this proxy statement.

ACCORDINGLY, THE GW BOARD UNANIMOUSLY RECOMMENDS THAT GW SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE SCHEME PROPOSAL, “FOR” THE APPROVAL OF THE SCHEME IMPLEMENTATION PROPOSAL AND “FOR” THE NON-BINDING ADVISORY PROPOSAL TO APPROVE CERTAIN COMPENSATION ARRANGEMENTS.

Opinions of Financial Advisors of GW

Opinion of Centerview Partners LLC

On February 2, 2021, Centerview rendered to the GW Board its oral opinion, subsequently confirmed in a written opinion dated such date, that, as of such date and based upon and subject to various assumptions made, procedures followed, matters considered, and qualifications and limitations upon the review undertaken by Centerview in preparing its opinion, the transaction deliverables to be paid to the holders of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than Excluded Shares) pursuant to the Transaction Agreement was fair, from a financial point of view, to such holders. References to the term “transaction deliverables” in this section and the section entitled “Summary—Opinions of Financial Advisors of GW—Opinion of Centerview Partners LLC” beginning on page 18 of this proxy statement shall be deemed to be to the share deliverable and the cash deliverable, taken together and not separately.

The full text of Centerview’s written opinion, dated February 2, 2021, which describes the assumptions made, procedures followed, matters considered, and qualifications and limitations upon the review undertaken by Centerview in preparing its opinion, is attached as Annex B and is incorporated herein by reference. The summary of the written opinion of Centerview set forth below is qualified in its entirety by reference to the full text of Centerview’s written opinion attached as Annex B. Centerview’s financial advisory services and opinion were provided for the information and assistance of the GW Board (in the directors’ capacity as directors and not in any other capacity) in connection with and for purposes of its consideration of the Transaction and Centerview’s opinion only addressed the fairness, from a financial point of view, as of the date thereof, to the holders of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than Excluded Shares) of the transaction deliverables to be paid to such holders pursuant to the Transaction Agreement. Centerview’s opinion did not address any other term or aspect of the Transaction Agreement or the Transaction and does not constitute a recommendation to any shareholder of GW or any other person as to how such shareholder or other person should vote with respect to the Transaction or otherwise act with respect to the Transaction or any other matter.

The full text of Centerview’s written opinion should be read carefully in its entirety for a description of the assumptions made, procedures followed, matters considered, and qualifications and limitations upon the review undertaken by Centerview in preparing its opinion.

In connection with rendering the opinion described above and performing its related financial analyses, Centerview reviewed, among other things:

 

   

a draft of the Transaction Agreement dated February 2, 2021, referred to in this summary of Centerview’s opinion as the “Draft Transaction Agreement”;

 

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Annual Reports on Form 10-K of GW for the fiscal years ended December 31, 2019 and September 30, 2018, and for the transition period from October 1, 2018 to December 31, 2018;

 

   

Annual Reports on Form 10-K of Jazz for the fiscal years ended December 31, 2019, December 31, 2018 and December 31, 2017;

 

   

certain interim reports to shareholders and Quarterly Reports on Form 10-Q of GW and Jazz;

 

   

certain publicly available research analyst reports for GW and Jazz;

 

   

certain other communications from GW and Jazz to their respective shareholders; and

 

   

certain internal information relating to the business, operations, earnings, cash flow, assets, liabilities and prospects of GW, including certain financial forecasts, analyses and projections relating to GW prepared by management of GW and furnished to Centerview by GW for purposes of Centerview’s analysis, which are referred to in this summary of Centerview’s opinion as the “December Forecasts”, and are described further below under the section entitled “—Certain GW Forecasts” beginning on page 81 of this proxy statement, and which are collectively referred to in this summary of Centerview’s opinion as the “Internal Data”.

Centerview also participated in discussions with members of the senior management and representatives of GW regarding their assessment of the Internal Data and with members of the senior management and representatives of Jazz regarding Jazz’s business. In addition, Centerview reviewed publicly available financial and stock market data, including valuation multiples, for GW and compared that data with similar data for certain other companies, the securities of which are publicly traded, in lines of business that Centerview deemed relevant. Centerview also compared certain of the proposed financial terms of the Transaction with the financial terms, to the extent publicly available, of certain other transactions that Centerview deemed relevant, and conducted such other financial studies and analyses and took into account such other information as Centerview deemed appropriate.

Centerview assumed, without independent verification or any responsibility therefor, the accuracy and completeness of the financial, legal, regulatory, tax, accounting and other information supplied to, discussed with, or reviewed by Centerview for purposes of its opinion and, with GW’s consent, Centerview relied upon such information as being complete and accurate. In that regard, Centerview assumed, at GW’s direction, that the Internal Data (including, without limitation, the December Forecasts) were reasonably prepared on bases reflecting the best currently available estimates and judgments of the management of GW as to the matters covered thereby and Centerview relied, at GW’s direction, on the Internal Data (including, without limitation, the December Forecasts) for purposes of Centerview’s analysis and opinion. Centerview expressed no view or opinion as to the Internal Data or the assumptions on which it was based. In addition, at GW’s direction, Centerview did not make any independent evaluation or appraisal of any of the assets or liabilities (contingent, derivative, off-balance-sheet or otherwise) of GW or Jazz, nor was Centerview furnished with any such evaluation or appraisal, and was not asked to conduct, and did not conduct, a physical inspection of the properties or assets of GW or Jazz. Centerview assumed, at GW’s direction, that the final executed Transaction Agreement would not differ in any respect material to Centerview’s analysis or opinion from the Draft Transaction Agreement reviewed by Centerview. Centerview also assumed, at GW’s direction, that the Transaction will be consummated on the terms set forth in the Transaction Agreement and in accordance with all applicable laws and other relevant documents or requirements, without delay or the waiver, modification or amendment of any term, condition or agreement, the effect of which would be material to Centerview’s analysis or Centerview’s opinion and that, in the course of obtaining the necessary governmental, regulatory and other approvals, consents, releases and waivers for the Transaction, no delay, limitation, restriction, condition or other change, including any divestiture requirements or amendments or modifications, will be imposed, the effect of which would be material to Centerview’s analysis or Centerview’s opinion. Centerview did not evaluate and did not express any opinion as to the solvency or fair value of GW or Jazz, or the ability of GW or Jazz to pay their respective obligations when they come due, or as to the impact of the Transaction on such matters, under any state, federal or other laws relating to bankruptcy, insolvency or similar matters. Centerview is not a legal, regulatory, tax or accounting advisor, and Centerview expressed no opinion as to any legal, regulatory, tax or accounting matters.

 

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Centerview’s opinion expressed no view as to, and did not address, GW’s underlying business decision to proceed with or effect the Transaction, or the relative merits of the Transaction as compared to any alternative business strategies or transactions that might be available to GW or in which GW might engage. Centerview’s opinion was limited to and addressed only the fairness, from a financial point of view, as of the date of Centerview’s written opinion, to the holders of the GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than Excluded Shares) of the transaction deliverables to be paid to such holders pursuant to the Transaction Agreement. For purposes of its opinion, Centerview was not asked to, and Centerview did not, express any view on, and its opinion did not address, any other term or aspect of the Transaction Agreement or the Transaction, including, without limitation, the structure or form of the Transaction, or any other agreements or arrangements contemplated by the Transaction Agreement or entered into in connection with or otherwise contemplated by the Transaction, including, without limitation, the fairness of the Transaction or any other term or aspect of the Transaction to, or any consideration to be received in connection therewith by, or the impact of the Transaction on, the holders of any other class of securities, creditors or other constituencies of GW or any other party. In addition, Centerview expressed no view or opinion as to the fairness (financial or otherwise) of the amount, nature or any other aspect of any compensation to be paid or payable to any of the officers, directors or employees of GW or any party, or class of such persons in connection with the Transaction, whether relative to the transaction deliverables to be paid to the holders of the GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) (other than Excluded Shares) pursuant to the Transaction Agreement or otherwise. Centerview’s opinion was necessarily based on financial, economic, monetary, currency, market and other conditions and circumstances as in effect on, and the information made available to Centerview as of, the date of Centerview’s written opinion, and Centerview does not have any obligation or responsibility to update, revise or reaffirm its opinion based on circumstances, developments or events occurring after the date of Centerview’s written opinion. Centerview’s opinion expressed no view or opinion as to what the value of Jazz ordinary shares actually will be when issued pursuant to the Transaction or the prices at which the GW ordinary shares or Jazz ordinary shares will trade or otherwise be transferable at any time, including following the announcement or consummation of the Transaction. Centerview’s opinion does not constitute a recommendation to any shareholder of GW or any other person as to how such shareholder or other person should vote with respect to the Transaction or otherwise act with respect to the Transaction or any other matter. Centerview’s financial advisory services and its written opinion were provided for the information and assistance of the GW Board (in the directors’ capacity as directors and not in any other capacity) in connection with and for purposes of its consideration of the Transaction. The issuance of Centerview’s opinion was approved by the Centerview Partners LLC Fairness Opinion Committee.

Summary of Centerview Financial Analysis

The following is a summary of the material financial analyses prepared and reviewed with the GW Board in connection with Centerview’s opinion, dated February 2, 2021. The summary set forth below does not purport to be a complete description of the financial analyses performed or factors considered by, and underlying the opinion of, Centerview, nor does the order of the financial analyses described represent the relative importance or weight given to those financial analyses by Centerview. Centerview may have deemed various assumptions more or less probable than other assumptions, so the reference ranges resulting from any particular portion of the analyses summarized below should not be taken to be Centerview’s view of the actual value of GW. Some of the summaries of the financial analyses set forth below include information presented in tabular format. In order to fully understand the financial analyses, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses performed by Centerview. Considering the data in the tables below without considering all financial analyses or factors or the full narrative description of such analyses or factors, including the methodologies and assumptions underlying such analyses or factors, could create a misleading or incomplete view of the processes underlying Centerview’s financial analyses and its opinion. In performing its analyses, Centerview made numerous assumptions with respect to industry performance, general business and economic conditions and other matters, many of which are beyond the control of GW or any other parties to the Transaction. None of GW, Jazz, Bidco or Centerview or any other person assumes

 

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responsibility if future results are materially different from those discussed. Any estimates contained in these analyses are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. In addition, analyses relating to the value of GW do not purport to be appraisals or reflect the prices at which GW may actually be sold. Accordingly, the assumptions and estimates used in, and the results derived from, the financial analyses are inherently subject to substantial uncertainty. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before February 1, 2021 (the last trading day before the execution of the Transaction Agreement) and is not necessarily indicative of current market conditions. For purposes of this section, the term “Implied Per GW ADS Consideration Value” means the value of $220.00 per GW ADS implied by the transaction deliverables, based on the closing price of Jazz ordinary shares on February 1, 2021.

Selected Public Company Analysis

Centerview reviewed certain financial information of GW and compared it to corresponding financial information of certain publicly traded companies that Centerview selected based on its experience and professional judgment (which are referred to as the “selected companies” in this summary of Centerview’s financial analyses). Although none of the selected companies is directly comparable to GW, the companies listed below were chosen by Centerview, among other reasons, because they are publicly traded commercial stage biopharmaceutical companies with certain operational, business and/or financial characteristics that, for purposes of Centerview’s analysis, may be considered similar to those of GW.

However, because none of the selected companies is exactly the same as GW, Centerview believed that it was inappropriate to, and therefore did not, rely solely on the quantitative results of the selected public company analysis. Accordingly, Centerview also made qualitative judgments, based on its experience and professional judgment, concerning differences between the operational, business and/or financial characteristics of GW and the selected companies that could affect the public trading values of each in order to provide a context in which to consider the results of the quantitative analysis.

Using publicly available information obtained from SEC filings and other data sources as of February 1, 2021, Centerview calculated, for each selected company, the company’s enterprise value (calculated as the equity value (determined using the treasury stock method and taking into account outstanding in-the-money options, warrants, restricted stock units, performance stock units and other convertible securities) plus the book value of debt and certain liabilities less cash and cash equivalents), as a multiple of Wall Street research analyst consensus estimated revenue for such company for the calendar year 2022 (“2022E EV/Revenue Multiple”).

The companies reviewed and the 2022E EV/Revenue Multiples for the selected companies were as follows:

 

Selected Companies

   2022E
EV/Revenue
Multiple
 

ACADIA Pharmaceuticals Inc.

     6.6x  

Amarin Corporation plc

     4.4x  

Horizon Therapeutics Public Limited Company

     5.1x  

Neurocrine Biosciences, Inc.

     6.7x  

Pacira Biosciences, Inc.

     5.3x  

PTC Therapeutics, Inc.

     6.2x  

Median

     5.8x  

Based on its analysis and other considerations that Centerview deemed relevant in its professional judgment and experience, Centerview selected a reference range of 2022E EV/Revenue Multiples of 4.0x to 6.5x. In selecting this range of 2022E EV/Revenue Multiples, Centerview made qualitative judgments based on its experience and

 

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professional judgment concerning differences between the business, financial and operating characteristics of GW and the selected companies that could affect their public trading values in order to provide a context in which to consider the results of the quantitative analysis. Applying this range of 2022E EV/Revenue Multiples to GW’s estimated calendar year risk-adjusted 2022 revenue of $1.084 billion, as set forth in the Internal Data, and adding to it GW’s net cash of $471 million as of December 31, 2020, and dividing the result of the foregoing calculations by the number of fully diluted outstanding GW ADS-equivalent GW ordinary shares (determined using the treasury stock method and taking into account the dilutive impact of outstanding in-the-money GW ADS-equivalent options and GW ADS-equivalent restricted stock units) as of January 29, 2021, based on the Internal Data, resulted in an implied per GW ADS equity value range of approximately $147.60 to $230.45, rounded to the nearest $0.05. Centerview then compared this range to the Implied Per GW ADS Consideration Value of $220.00.

Selected Transactions Analysis

Centerview reviewed and compared certain information relating to the following selected biopharmaceutical transactions that Centerview, based on its experience and professional judgment, deemed relevant to consider in relation to GW and the Transaction. These transactions were selected, among other reasons, because their participants, size or other factors, for purposes of Centerview’s analysis, may be considered similar to the Transaction. Centerview used its experience, expertise and knowledge of these industries to select transactions that involved companies with certain operational, business and/or financial characteristics that, for purposes of this analysis, may be considered similar to those of GW.

However, because none of the selected transactions used in this analysis is identical or directly comparable to the Transaction, Centerview believed that it was inappropriate to rely solely on the quantitative results of the selected transaction analysis. Accordingly, Centerview also made qualitative judgments, based on its experience and professional judgment, concerning differences between the operational, business and/or financial characteristics of GW and each target company as well as the Transaction and the selected transactions that could affect the transaction values of each in order to provide a context in which to consider the results of the quantitative analysis.

Using publicly available information obtained from SEC filings and other data sources as of February 1, 2021, Centerview calculated, for each selected transaction, the transaction value (calculated as the offer value (determined using the treasury stock method and taking into account outstanding in-the-money options, warrants, restricted stock units, performance stock units and other convertible securities), plus the book value of debt and certain liabilities less cash and cash equivalents implied for each target company based on the consideration payable in the applicable selected transaction) as a multiple of the target company’s two-year forward projected revenue following the transaction (“Two-Year Forward Revenue Multiple”).

The selected transactions considered in this analysis are summarized below:

 

Date
Announced
  

Target

  

Acquiror

   Transaction
Value/2-Year
Forward
Revenue
 
05/05/20   

Portola Pharmaceuticals, Inc.

  

Alexion Pharmaceuticals, Inc.

     6.0x  
01/22/18   

Bioverativ Inc.

  

Sanofi SA

     7.6x  
12/26/17   

Sucampo Pharmaceuticals, Inc.

  

Mallinckrodt public limited company

     3.8x  
01/11/15   

NPS Pharmaceuticals, Inc.

  

Shire plc

     8.4x  
04/07/14   

Questcor Pharmaceuticals, Inc.

  

Mallinckrodt public limited company

     4.2x  
11/11/13   

ViroPharma Incorporated

  

Shire plc

     5.8x  
11/07/13   

Santarus, Inc.

  

Salix Pharmaceuticals, Ltd.

     4.7x  
        

 

 

 
Median            5.8x  

 

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Based on its analysis and other considerations that Centerview deemed relevant in its professional judgment and experience, Centerview selected a reference range of Two-Year Forward Revenue Multiples of 5.0x to 7.5x. In selecting this range of Two-Year Forward Revenue Multiples, Centerview made qualitative judgments based on its experience and professional judgment concerning differences between the business, financial and operating characteristics of GW and the target companies included in the selected transactions and other factors that could affect each transaction or other values in order to provide a context in which to consider the results of the quantitative analysis.

Applying this range of Two-Year Forward Revenue Multiples to GW’s estimated two-year forward risk-adjusted revenue of $1.084 billion, as set forth in the Internal Data, and adding to it GW’s net cash of $471 million as of December 31, 2020, and dividing the result of the foregoing calculations by the number of fully diluted outstanding GW ADS-equivalent GW ordinary shares (determined using the treasury stock method and taking into account the dilutive impact of outstanding in-the-money GW ADS-equivalent options and GW ADS-equivalent restricted stock units) as of January 29, 2021 based on the Internal Data, resulted in an implied per GW ADS equity value range of approximately $180.80 to $263.60, rounded to the nearest $0.05. Centerview then compared this range to the Implied Per GW ADS Consideration Value of $220.00.

Discounted Cash Flow Analysis

Centerview performed a discounted cash flow analysis of GW based on the December Forecasts and the calculations of risk adjusted, after-tax unlevered free cash flows set forth in the section entitled “Certain GW Forecasts” beginning on page 81 of this proxy statement. A discounted cash flow analysis is a traditional valuation methodology used to derive a valuation of an asset or set of assets by calculating the “present value” of estimated future cash flows of the asset or set of assets. “Present value” refers to the current value of future cash flows and is obtained by discounting those future cash flows by a discount rate that takes into account macroeconomic assumptions and estimates of risk, the opportunity cost of capital, expected returns and other appropriate factors.

In performing this analysis, Centerview calculated a range of per GW ADS equity values by (a) discounting to present value as of December 31, 2020 using discount rates ranging from 9.5% to 11.5% (reflecting Centerview’s analysis of GW’s weighted average cost of capital) and using a mid-year convention: (i) the forecasted risk-adjusted, after-tax unlevered free cash flows of GW over the period beginning on January 1, 2021 and ending on December 31, 2035, utilized by Centerview based on the December Forecasts, (ii) an implied terminal value of GW, calculated by Centerview by assuming that unlevered free cash flows would decline in perpetuity after December 31, 2035 at a range of rates of free cash flow decline of 10% to 40% year over year, (iii) tax savings from usage of GW’s United Kingdom net operating losses of $697 million as of December 31, 2020 and future losses and (b) adding to the foregoing results GW’s net cash of $471 million as of December 31, 2020. Centerview divided the result of the foregoing calculations by the number of fully diluted outstanding GW ADS-equivalent GW ordinary shares (determined using the treasury stock method and taking into account the dilutive impact of outstanding in-the-money GW ADS-equivalent options and GW ADS-equivalent restricted stock units) as of January 29, 2021 based on the Internal Data, resulting in a range of implied equity values per GW ADS of approximately $200.20 to $247.95, rounded to the nearest $0.05. Centerview compared this range to the Implied Per GW ADS Consideration Value of $220.00.

Other Factors

Centerview noted for the GW Board certain additional factors solely for informational purposes, including, among other things, the following:

 

   

Sensitivity Analysis. Centerview performed sensitivity analyses to assess the implied impact on the midpoint illustrative equity value per GW ADS of $218.25 derived from the analysis described above under “—Summary of Centerview Financial Analysis—Discounted Cash Flow Analysis” (reflecting a

 

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midpoint discount rate of 10.5% and a midpoint perpetuity growth rate of (25%)), by varying certain assumptions of GW’s management with respect to Epidiolex and nabiximols, including, but not limited to, loss of exclusivity, peak sales, probability of additional indications and timing of approvals. Such sensitivity analysis reflected a decrease in implied equity values per GW ADS of up to $46.70 and an increase in implied equity values per GW ADS of up to $34.70, each rounded to the nearest $0.05.

 

   

Analyst Price Target Analysis. Centerview reviewed stock price targets for the GW ADSs in Wall Street research analyst reports publicly available as of February 1, 2021, noting these stock price targets ranged from $125.00 per GW ADS to $270.00 per GW ADS.

 

   

Premia Paid Analysis. Centerview performed an analysis of premiums paid in the selected transactions involving publicly traded biopharmaceutical companies, as set forth above under “—Summary of Centerview Financial Analysis—Selected Transactions Analysis”, for which premium data was available. Centerview calculated, for each such transaction, the percentage premium represented by the transaction price per share to the target company’s market price per share on the trading day prior to the first public knowledge of the possibility of the transaction, which is referred to as % premium to 1-day unaffected price. Based on the analysis above and other considerations that Centerview deemed relevant in its professional judgment, Centerview applied a range of 40% to 80% to GW’s closing price per GW ADS on February 1, 2021 of $144.08, which resulted in an implied price range of approximately $201.70 to $259.35 per GW ADS, rounded to the nearest $0.05.

 

   

Historical Stock Trading Analysis. Centerview analyzed the transaction deliverables to be paid to holders of GW ADSs pursuant to the Transaction Agreement in relation to the closing price per GW ADS on February 1, 2021, the highest and lowest prices per GW ADS during the 52-week period ended February 1, 2021, the volume weighted average price (VWAP) per GW ADS for the 15-day, 30-day and 60-day periods ending February 1, 2021 and the closing price per GW ADS on July 7, 2020, which was the date prior to Jazz’s initial offer.

This analysis indicated that the price per GW ADS to be paid to GW shareholders pursuant to the Transaction Agreement, based on the closing price per Jazz ordinary share on February 1, 2021, represented:

 

   

a premium of 53% based on the closing price per GW ADS on February 1, 2021 of $144.08 per GW ADS;

 

   

a premium of 39% based on the highest price per GW ADS during the 52-week period ended February 1, 2021 of $158.47 per GW ADS;

 

   

a premium of 204% based on the lowest price per GW ADS during the 52-week period ended February 1, 2021 of $72.48 per GW ADS;

 

   

a premium of 50% based on the VWAP for the 15-day period ended February 1, 2021 of $147.09 per GW ADS;

 

   

a premium of 61% based on the VWAP for the 30-day period ended February 1, 2021 of $136.95 per GW ADS;

 

   

a premium of 68% based on the VWAP for the 60-day period ended February 1, 2021 of $130.94 per GW ADS; and

 

   

a premium of 70% based on the closing price per GW ADS on July 7, 2020 of $129.62 per GW ADS.

General

The preparation of a financial opinion is a complex analytical process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances and, therefore, a financial opinion is not readily susceptible to summary description. In arriving at its opinion, Centerview did not draw, in isolation, conclusions from or with regard to any factor or analysis that it considered. Rather, Centerview made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of the analyses.

 

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Centerview’s financial analyses and opinion were only one of many factors taken into consideration by the GW Board in its evaluation of the Transaction. Consequently, the analyses described above should not be viewed as determinative of the views of the GW Board or management of GW with respect to the transaction deliverables or as to whether the GW Board would have been willing to determine that a different consideration was fair. The consideration for the Transaction was determined through arm’s-length negotiations between GW and Jazz and was approved by the GW Board. Centerview provided advice to GW during these negotiations. Centerview did not, however recommend any specific amount of consideration to GW or the GW Board or that any specific amount of consideration constituted the only appropriate consideration for the Transaction.

Centerview is a securities firm engaged directly and through affiliates and related persons in a number of investment banking, financial advisory and merchant banking activities. In the two years prior to the date of its written opinion, except for its current engagement, Centerview was not engaged to provide financial advisory or other services to GW, and Centerview did not receive compensation from GW during such period. In the two years prior to the date of its written opinion, Centerview was not engaged to provide financial advisory or other services to Jazz, and Centerview did not receive compensation from Jazz during such period. Centerview may provide investment banking and other services to or with respect to GW or Jazz or their respective affiliates in the future, for which Centerview may receive compensation. Certain (i) of Centerview’s and Centerview’s affiliates’ directors, officers, members and employees, or family members of such persons, (ii) of Centerview’s affiliates or related investment funds and (iii) investment funds or other persons in which any of the foregoing may have financial interests or with which they may co-invest, may at any time acquire, hold, sell or trade, in debt, equity and other securities or financial instruments (including derivatives, bank loans or other obligations) of, or investments in, GW or Jazz or any of their respective affiliates, or any other party that may be involved in the Transaction.

The GW Board selected Centerview as its financial advisor in connection with the Transaction based on Centerview’s reputation and experience in providing M&A advisory services to the biopharmaceutical industry. Centerview is an internationally recognized investment banking firm that has substantial experience in transactions similar to the Transaction.

In connection with Centerview’s services as financial advisor to the GW Board, GW has agreed to pay Centerview an aggregate fee of approximately $36 million, $1.5 million of which was payable upon execution of the Transaction Agreement and the remainder of which is payable contingent upon consummation of the Transaction. In addition, GW has agreed to reimburse certain of Centerview’s expenses arising, and to indemnify Centerview against certain liabilities that may arise, out of Centerview’s engagement.

Opinion of Goldman Sachs & Co. LLC

Goldman Sachs rendered its oral opinion to the GW Board, which was subsequently confirmed by delivery of a written opinion dated February 3, 2021, that, as of such date and based upon and subject to the factors and assumptions set forth therein, the transaction deliverables to be paid to the holders (other than Jazz and its affiliates) of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) pursuant to the Transaction Agreement was fair from a financial point of view to such holders. References to the term “transaction deliverables” in this section and the section entitled “Summary—Opinions of Financial Advisors of GW—Opinion of Goldman Sachs & Co. LLC” beginning on page 18 of this proxy statement shall be deemed to be to the share deliverable and the cash deliverable, taken together and not separately.

The full text of the written opinion of Goldman Sachs, dated February 3, 2021, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex C. Goldman Sachs provided advisory services and its opinion for the information and assistance of the GW Board in connection with its consideration of the Transaction. The Goldman Sachs opinion is not a recommendation as to how any holder of GW ordinary shares should vote with respect to the Transaction, or any other matter.

 

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In connection with rendering the opinion described above and performing its related financial analyses, Goldman Sachs reviewed, among other things:

 

   

the Transaction Agreement;

 

   

annual reports to shareholders and Annual Reports on Form 10-K of GW for the fiscal years ended December 31, 2019 and September 30, 2018, and for the transition period from October 1, 2018 to December 31, 2018 and of Jazz for the five years ended December 31, 2019;

 

   

certain interim reports to shareholders and Quarterly Reports on Form 10-Q of GW and Jazz;

 

   

certain other communications from GW and Jazz to their respective shareholders;

 

   

certain publicly available research analyst reports for GW and Jazz; and

 

   

certain internal financial analyses and forecasts for GW prepared by its management, as approved for Goldman Sachs’ use by GW, which are referred to as the “December Forecasts”, and are described further below under the section entitled “—Certain GW Forecasts” beginning on page 81 of this proxy statement, and certain analyses prepared by the management of GW related to the expected utilization by GW of certain net operating loss carryforwards of GW, as approved for Goldman Sachs’ use by GW (the “NOL Forecasts”).

Goldman Sachs also held discussions with members of the senior managements of GW and Jazz regarding their assessment of the past and current business operations, financial condition and future prospects of GW and Jazz; reviewed the reported price and trading activity for the GW ordinary shares and the Jazz ordinary shares; compared certain financial and stock market information for GW and Jazz with similar information for certain other companies the securities of which are publicly traded; reviewed the financial terms of certain recent business combinations in the biopharmaceutical industry; and performed such other studies and analyses, and considered such other factors, as it deemed appropriate.

For purposes of rendering its opinion, Goldman Sachs, with GW’s consent, relied upon and assumed the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by, it, without assuming any responsibility for independent verification thereof. In that regard, Goldman Sachs assumed with GW’s consent that the December Forecasts and the NOL Forecasts were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of GW. Goldman Sachs did not make an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off-balance-sheet assets and liabilities) of GW or Jazz or any of their respective subsidiaries and it was not furnished with any such evaluation or appraisal. Goldman Sachs assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the Transaction will be obtained without any adverse effect on GW or Jazz or on the expected benefits of the Transaction in any way meaningful to its analysis. Goldman Sachs has also assumed that the Transaction will be consummated on the terms set forth in the Transaction Agreement, without the waiver or modification of any term or condition the effect of which would be in any way meaningful to its analysis.

Goldman Sachs’ opinion does not address the underlying business decision of GW to engage in the Transaction or the relative merits of the Transaction as compared to any strategic alternatives that may be available to GW; nor does it address any legal, regulatory, tax or accounting matters. Goldman Sachs was not requested to solicit, and did not solicit, interest from other parties with respect to an acquisition of, or other business combination with, GW or any alternative transaction. Goldman Sachs’ opinion addresses only the fairness from a financial point of view to the holders (other than Jazz and its affiliates) of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs), as of the date of the opinion, of the transaction deliverables to be paid to such holders pursuant to the Transaction Agreement. Goldman Sachs’ opinion does not express any view on, and does not address, any other term or aspect of the Transaction Agreement or the Transaction or any term or aspect of any other agreement or instrument contemplated by the Transaction Agreement or entered into or amended in connection with the Transaction, including the fairness of the

 

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Transaction to, or any consideration received in connection therewith by, the holders of any other class of securities, creditors, or other constituencies of GW; nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of GW, or class of such persons, in connection with the Transaction, whether relative to the transaction deliverables to be paid to the holders (other than Jazz and its affiliates) of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) pursuant to the Transaction Agreement or otherwise. Goldman Sachs’ opinion does not express any opinion as to the prices at which Jazz ordinary shares will trade at any time or as to the potential effects of volatility in the credit, financial and stock markets on GW or Jazz or the Transaction, or as to the impact of the Transaction on the solvency or viability of GW or Jazz or the ability of GW or Jazz to pay their respective obligations when they come due. Goldman Sachs’ opinion was necessarily based on economic, monetary market and other conditions, as in effect on, and the information made available to it as of the date of the opinion and Goldman Sachs assumed no responsibility for updating, revising or reaffirming its opinion based on circumstances, developments or events occurring after the date of its opinion. Goldman Sachs’ advisory services and the opinion expressed therein were provided for the information and assistance of the GW Board in connection with its consideration of the Transaction and such opinion does not constitute a recommendation as to how any holder of GW ordinary shares should vote with respect to such Transaction or any other matter. Goldman Sachs’ opinion was approved by a fairness committee of Goldman Sachs.

The following is a summary of the material financial analyses delivered by Goldman Sachs to the GW Board in connection with rendering the opinion described above. The following summary, however, does not purport to be a complete description of the financial analyses performed by Goldman Sachs, nor does the order of analyses described represent relative importance or weight given to those analyses by Goldman Sachs. Some of the summaries of the financial analyses include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of Goldman Sachs’ financial analyses. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before February 1, 2021, the second to last trading day before the execution of the Transaction Agreement and is not necessarily indicative of current market conditions.

Illustrative Discounted Cash Flow Analysis. Using the December Forecasts and the NOL Forecasts, Goldman Sachs performed an illustrative discounted cash flow analysis of GW. Using discount rates ranging from 9.5% to 11.5%, reflecting estimates of GW’s weighted average cost of capital, Goldman Sachs discounted to present value as of December 31, 2020 (i) estimates of unlevered free cash flow for GW for the years 2021 through 2035 as reflected in the December Forecasts and (ii) a range of illustrative terminal values for GW, which were calculated by applying perpetuity growth rates ranging from 0.0% to 2.0%, to a terminal year estimate of the unlevered free cash flow to be generated by GW, as reflected in the December Forecasts. Goldman Sachs derived such discount rates by application of the Capital Asset Pricing Model (“CAPM”), which requires certain company-specific inputs, including the company’s target capital structure weightings, the cost of long-term debt, after-tax yield on permanent excess cash, if any, future applicable marginal cash tax rate and a beta for the company, as well as certain financial metrics for the United States financial markets generally. The range of perpetuity growth rates was estimated by Goldman Sachs utilizing its professional judgment and experience, taking into account the December Forecasts and market expectations regarding long-term real growth of gross domestic product and inflation. Goldman Sachs derived ranges of illustrative enterprise values for GW by adding the ranges of present values it derived above. Goldman Sachs then added to the range of illustrative enterprise values it derived for GW the estimated net cash of GW as of December 31, 2020 of $471 million, as provided by the management of GW, to derive a range of illustrative equity values for GW. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding GW ADS-equivalent GW ordinary shares, calculated using the treasury stock method and data as of January 29, 2021, provided by the management of GW, to derive a range of illustrative present values per GW ADS ranging from $199 to $244.

Goldman Sachs also performed a sensitivity analysis to analyze the implied impact on the midpoint illustrative present value per GW ADS of $218 derived from the analysis described above (reflecting a midpoint discount rate of 10.5% and a midpoint perpetuity growth rate of 1.0%), by varying GW’s management’s assumptions with

 

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respect to (i) peak sales of Epidiolex, (ii) peak sales of nabiximols / Sativex, (iii) US approvals of nabiximols, (iv) peak sales of New Organic Products and Platform and (v) New Organic Products and Platform probability of success. The following table presents the results of this analysis:

 

Base Assumptions

 

Sensitivity
Analysis

 

Impact on Equity Value Per GW ADS
(-)/+ Compared to Midpoint of
Discounted Cash Flow Analysis
Assumptions of $218

Epidiolex peak sales   +/– $200 million   $(25) - $25
Nabiximols / Sativex peak sales   +/– $100 million   $(4) - $4
Nabiximols US approvals   $300 – $500 million
peak sales from
additional approved
indications
  $20 - $33

New Organic Products and Platform peak sales

  +/– $100 million   $(14) - $14

New Organic Products and Platform probability of success

  +/– 5%   $(13) - $13

Illustrative Sum-of-the-Parts Discounted Cash Flow Analysis. Using the December Forecasts and the NOL Forecasts, Goldman Sachs performed an illustrative sum-of-the-parts discounted cash flow analysis of GW. In connection with this analysis, Goldman Sachs performed separate discounted cash flow analyses with respect to the following items of GW:

 

   

Epidiolex through 2026;

 

   

Epidiolex post 2026;

 

   

Nabiximols / Sativex;

 

   

New Organic Products;

 

   

Platform; and

 

   

Estimated benefits from utilization by GW of NOLs.

Unallocated costs from the December Forecasts were allocated to Epidiolex, nabiximols / Sativex and New Organic Products on a pro rata basis based on guidance provided by the management of GW.

Using discount rates ranging from 9.5% to 11.5%, reflecting an estimate of GW’s weighted average cost of capital, Goldman Sachs discounted to present value as of December 31, 2020, (i) estimates of unlevered free cash flow to be generated from each of Epidiolex through 2026, Epidiolex post 2026, nabiximols / Sativex, New Organic Products and Platform, each based on the December Forecasts, and (ii) a range of illustrative terminal values for each of the above, which were calculated by applying perpetuity growth rates estimated by GW’s management, as indicated below. Goldman Sachs derived such discount rates by application of CAPM. Goldman Sachs derived a range of illustrative present values for each of Epidiolex through 2026, Epidiolex post 2026, nabiximols / Sativex, New Organic Products and Platform by adding the ranges of present values described above and dividing the result by the number of fully diluted outstanding GW ADS-equivalent GW ordinary shares as of January 29, 2021, calculated using the treasury stock method and data provided by the management of GW.

 

Item

   Management Perpetuity Growth Rate  

Epidiolex through 2026

     0

Epidiolex post 2026

     0

Nabiximols / Sativex

     0

New Organic Products

     0

Platform

     3

 

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In addition, using the discount rates described above, Goldman Sachs also discounted to present value as of December 31, 2020, estimates of the benefits to be derived by GW from its utilization of its net operating losses as reflected in the NOL Forecasts, to derive a range of illustrative values for these benefits. Goldman Sachs then divided the range of illustrative values by the number of fully diluted outstanding GW ADS-equivalent GW ordinary shares, calculated using the treasury stock method and data as of January 29, 2021 provided by the management of GW, to derive a per GW ADS value for such benefits.

This analysis yielded the following ranges of illustrative present values per GW ADS as of December 31, 2020:

 

Item

   Illustrative Range of Per—GW ADS Values

Epidiolex through 2026

   $126 - $143

Epidiolex post 2026

   $38 - $38

Nabiximols / Sativex

   $20 - $28

New Organic Products

   $0 - $4

Platform

   $3 - $5

Estimated benefits from utilization by GW of NOLs

   $2 - $2

Goldman Sachs then added together the per GW ADS values it derived for each such item listed above with net cash per GW ADS, which was calculated using a net cash estimate of $471 million as of December 31, 2020, as provided by the management of GW, divided by the number of fully diluted outstanding GW ADS-equivalent GW ordinary shares, calculated using the treasury stock method and data as of January 29, 2021 provided by the management of GW, to derive a range of illustrative present values per GW ADS, as of December 31, 2020, ranging from $199 to $235.

Premia Analysis. Goldman Sachs reviewed and analyzed, using publicly available information, the acquisition premia for certain transactions announced during the time period from January 1, 2015 through February 1, 2021 involving targets that were public biopharmaceutical companies and where the disclosed transaction values were between $5 billion and $10 billion.

 

Date Announced

 

Acquiror

 

Target

  Premium to
Target’s Last
Undisturbed
Closing
Share Price
    Premium to
Target’s 52-Week
High Closing
Share Price
 

August 19, 2020

  Johnson & Johnson   Momenta Pharmaceuticals, Inc.     70     34

November 24, 2019

  Novartis AG   The Medicines Company     45     45

January 7, 2019

  Eli Lilly and Company   Loxo Oncology, Inc.     68     24

April 9, 2018

  Novartis AG   AveXis, Inc.     88     59

January 9, 2017

  Takeda Pharmaceutical Company Limited   ARIAD Pharmaceuticals, Inc.     75     69

May 16, 2016

  Pfizer Inc.   Anacor Pharmaceuticals, Inc.     55     (37 )% 

November 2, 2015

  Shire plc   Dyax Corp.     35     22

July 14, 2015

  Celgene Corporation   Receptos, Inc.     45     34

January 11, 2015

  Shire plc   NPS Pharmaceuticals, Inc.     51     18

High

        88     69

75th Percentile

        73     52

Median

        55     34

25th Percentile

        45     20

Low

        35     (37 )% 

 

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For the transactions above, using publicly available information, Goldman Sachs calculated the high, 75th percentile, median, 25th percentile and low premiums of the price paid relative to the target’s last undisturbed closing stock price prior to announcement of the transaction and to the highest trading price for the target’s shares over the 52-week period ending on the date of the target’s last undisturbed closing share price. The results of this analysis are presented in the table above. Using this analysis, Goldman Sachs (i) applied a reference range of illustrative premiums of 45% to 73% to the undisturbed closing price per GW ADS of $144.08 as of February 1, 2021 and calculated a range of implied equity values per GW ADS-equivalent GW ordinary share of $209 to $249 and (ii) applied a reference range of illustrative premiums of 20% to 52% to the 52-week high closing price per GW ADS of $158.47 as February 1, 2021 and calculated a range of implied equity values per GW ADS-equivalent GW ordinary share of $190 to $241.

Historical Stock Trading Analysis. For reference purposes only, Goldman Sachs analyzed the transaction deliverables to be paid to holders of GW ADSs pursuant to the Transaction Agreement in relation to the closing price per GW ADS on February 1, 2021, the highest and lowest prices per GW ADS during the 52-week period ended February 1, 2021, the volume weighted average price (VWAP) per GW ADS for the 15-day, 30-day and 60-day periods ending February 1, 2021 and the closing price per GW ADS on July 7, 2020, which was the date prior to Jazz’s initial offer.

This analysis indicated that the price per GW ADS to be paid to GW shareholders pursuant to the Transaction Agreement, based on the closing price per Jazz ordinary share on February 1, 2021, represented:

 

   

a premium of 53% based on the closing price per GW ADS on February 1, 2021 of $144.08 per GW ADS;

 

   

a premium of 39% based on the highest price per GW ADS during the 52-week period ended February 1, 2021 of $158.47 per GW ADS;

 

   

a premium of 204% based on the lowest price per GW ADS during the 52-week period ended February 1, 2021 of $72.48 per GW ADS;

 

   

a premium of 50% based on the VWAP for the 15-day period ended February 1, 2021 of $147.09 per GW ADS;

 

   

a premium of 61% based on the VWAP for the 30-day period ended February 1, 2021 of $136.95 per GW ADS;

 

   

a premium of 68% based on the VWAP for the 60-day period ended February 1, 2021 of $130.94 per GW ADS; and

 

   

a premium of 70% based on the closing price per GW ADS on July 7, 2020 of $129.62 per GW ADS.

General. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Goldman Sachs’ opinion. In arriving at its fairness determination, Goldman Sachs considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Goldman Sachs made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. No company or transaction used in the above analyses as a comparison is directly comparable to GW or Jazz or the Transaction.

Goldman Sachs prepared these analyses for purposes of Goldman Sachs’ providing its opinion to the GW Board as to the fairness from a financial point of view of the transaction deliverables to be paid to the holders (other than Jazz and its affiliates) of GW ordinary shares (including, for the avoidance of doubt, ordinary shares represented by GW ADSs) pursuant to the Transaction Agreement. These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which businesses or securities actually may be sold.

 

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Analyses based upon forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by these analyses. Because these analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors, none of GW, Jazz, Goldman Sachs or any other person assumes responsibility if future results are materially different from those forecast.

The transaction deliverables were determined through arm’s-length negotiations between GW and Jazz and was approved by the GW Board. Goldman Sachs did not recommend any specific amount of consideration to GW or its board of directors or that any specific amount of consideration constituted the only appropriate consideration for the Transaction.

As described above, Goldman Sachs’ opinion to the GW Board was one of many factors taken into consideration by the GW Board in making its determination to approve the Transaction Agreement. The foregoing summary does not purport to be a complete description of the analyses performed by Goldman Sachs in connection with the fairness opinion and is qualified in its entirety by reference to the written opinion of Goldman Sachs attached as Annex C.

Goldman Sachs and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment management and other financial and non-financial activities and services for various persons and entities. Goldman Sachs and its affiliates and employees, and funds or other entities they manage or in which they invest or have other economic interests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of GW, Jazz, any of their respective affiliates and third parties, or any currency or commodity that may be involved in the Transaction. Goldman Sachs acted as financial advisor to GW in connection with, and participated in certain of the negotiations leading to, the Transaction. Goldman Sachs has provided certain financial advisory and/or underwriting services to GW and/or its affiliates from time to time. During the two year period ended February 3, 2021 the Investment Banking Division of Goldman Sachs has not been engaged by GW or its affiliates to provide financial advisory or underwriting services for which Goldman Sachs has recognized compensation. Goldman Sachs also has provided certain financial advisory and/or underwriting services to Jazz and/or its affiliates from time to time for which the Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as joint lead manager with respect to a private offering by Jazz Investments I Limited, an affiliate of Jazz, of its 2.000% exchangeable senior notes due 2026 (aggregate principal amount $850 million) in June 2020. During the two-year period ended February 3, 2021, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by its Investment Banking Division to Jazz and/or its affiliates of approximately $3.8 million. Goldman Sachs may also in the future provide financial advisory and/or underwriting services to GW, Jazz and their respective affiliates for which the Investment Banking Division of Goldman Sachs may receive compensation.

The GW Board selected Goldman Sachs as its financial advisor because it is an internationally recognized investment banking firm that has substantial experience in transactions similar to the Transaction. Pursuant to a letter agreement dated January 22, 2021, GW engaged Goldman Sachs to act as its financial advisor in connection with the contemplated transaction. The engagement letter between GW and Goldman Sachs provides for a transaction fee that is estimated, based on the information available as of the date of announcement, at approximately $36 million, $1.5 million of which became payable at announcement of the Transaction, and the remainder of which is contingent upon consummation of the Transaction. In addition, GW has agreed to reimburse Goldman Sachs for certain of its expenses, including attorneys’ fees and disbursements, and to indemnify Goldman Sachs and related persons against various liabilities, including certain liabilities under the federal securities laws.

 

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Certain GW Forecasts

Other than periodic guidance concerning GW’s projected research and development expenses, selling, general and administrative expenses and capital expenditures, which guidance GW presents as a range, GW does not as a matter of course publicly disclose financial forecasts or projections as to future revenues or other results of its operations due to, among other reasons, the uncertainty, unpredictability and subjectivity of the underlying assumptions and estimates. However, as described further in “—Background of the Transaction” beginning on page 53 of this proxy statement, GW management has historically prepared and periodically updated forecasts for use in discussions and reviews with the GW Board of GW’s strategic plan. GW management reviewed forecasts for fiscal years 2020 through 2035 (the “July Forecasts”) with the GW Board in July 2020 following receipt of Jazz’s initial non-binding proposal as part of the GW Board’s evaluation of the proposal. The July Forecasts had been prepared by GW management before receiving Jazz’s proposal. GW management updated the July Forecasts in December 2020 (as so updated, the “December Forecasts”) to remove fiscal year 2020 given that it was substantially complete and to reflect subsequent events and changes in certain circumstances and underlying assumptions (as described further below), which updated forecasts were reviewed with the GW Board at its meetings on December 13, 2020 and February 2, 2021. The July Forecasts and the December Forecasts (collectively, the “Forecasts”) are set forth below.

The Forecasts were not prepared with a view toward public disclosure or with a view toward complying with generally accepted accounting principles in the United States (“GAAP”), the published guidelines of the SEC regarding projections or the guidelines established by the American Institute of Certified Public Accountants for the preparation and presentation of prospective financial information. Neither GW’s independent registered public accounting firm, nor any other independent registered accounting firm, has compiled, examined or performed any procedures with respect to the prospective financial information contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability, and assume no responsibility for, and disclaim any association with, the prospective financial information. The reports of GW’s independent registered public accounting firm incorporated by reference into this proxy statement relate to GW’s historical financial information, and no such report (or report of any other independent accounting firm incorporated by reference herein) extends to the Forecasts or should be read to do so.

The July Forecasts were provided to the GW Board and, for informational purposes, GW’s financial advisors. The December Forecasts were provided to the GW Board and GW’s financial advisors, and GW provided a portion of the December Forecasts for fiscal year 2021 to Jazz and its financial advisors in connection with Jazz’s due diligence process. GW did not provide the July Forecasts or the full December Forecasts to Jazz or its financial advisors in connection with the Transaction. In connection with the Transaction, the GW Board and GW’s management authorized Centerview and Goldman Sachs to use and rely on the December Forecasts in connection with their financial analyses and respective opinions as described in the section entitled “—Opinions of Financial Advisors of GW” beginning on page 67 of this proxy statement. The Forecasts are presented in this proxy statement solely to give GW shareholders access to the information that was made available to the GW Board, Jazz and their respective financial advisors to the extent described above.

The Forecasts are subjective in many respects and thus subject to interpretation. While presented with numerical specificity, the Forecasts reflect numerous estimates and assumptions made by GW’s management at the time the Forecasts were prepared that are difficult to predict and that are beyond GW’s control and are subject to change. The assumptions and estimates underlying the Forecasts are inherently uncertain and are subject to a wide variety of significant business, economic, competitive and regulatory risks and uncertainties that could cause actual results to differ materially from those contained in the Forecasts, including, among others, the following: risks and uncertainties relating to the commercialization of Epidiolex / Epidyolex, obtaining marketing approvals for Epidiolex / Epidyolex in additional indications or in additional jurisdictions, maintaining the scope and extent of GW’s intellectual property and regulatory protections, such as orphan drug exclusivities, for Epidiolex / Epidyolex, and the research, development, regulatory review and potential future commercialization of nabiximols / Sativex and GW’s other product candidates; market demand, pricing, governmental reimbursement

 

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and other factors beyond the control of GW; and other risks and uncertainties relating to GW’s business (including its ability to achieve strategic goals, objectives and targets over applicable periods); industry performance; the regulatory and competitive environment; general global business and economic conditions and other matters described in the sections entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 26 of this proxy statement, “Risk Factors” beginning on page 28 of this proxy statement and Part I, Item 1A in GW’s Annual Report on Form 10-K for the year ended December 31, 2020, which is incorporated by reference into this proxy statement. Modeling and forecasting the future commercialization of clinical, pre-clinical and research stage product candidates is a highly speculative endeavor. In addition to the various limitations, risks and uncertainties described above, we also cannot assure you that GW will obtain and maintain any of the regulatory approvals necessary for the commercialization of its product candidates, or that GW’s competitors will not commercialize products that are safer, more effective or more successfully marketed and sold than Epidiolex / Epidyolex or any additional products that GW may commercialize in the future. Some or all of the estimates and assumptions underlying the Forecasts may have changed since the date the Forecasts were prepared.

Accordingly, there can be no assurance that the Forecasts are necessarily predictive of the future performance of GW or that actual results will not differ materially from those presented in the Forecasts. Additionally, the Forecasts cover a number of years into the future and such information by its nature becomes less predictive with each successive year. Therefore, the inclusion of the Forecasts in this proxy statement should not be regarded as a representation by any person that the results contained in the Forecasts will be achieved or that the results achieved will not exceed those reflected in the Forecasts.

The Forecasts were developed for GW on a stand-alone basis without giving effect to the Transaction or entry into the Transaction Agreement, including any potential synergies that may be achieved by the combined company as a result of the Transaction, any changes to GW’s strategy or operations that may be implemented after the consummation of the Transaction or any costs incurred in connection with the Transaction. Furthermore, the Forecasts do not take into account the effect of any failure of the Transaction to be completed and should not be viewed as relevant or continuing in that context.

The Forecasts include non-GAAP financial measures. These non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with U.S. GAAP, and may not be comparable to similarly titled measures used by other companies. Financial measures included in projections provided to a financial advisor and a board of directors in connection with a business combination transaction are excluded from the definition of “non-GAAP financial measures” under the rules of the SEC, and therefore such financial measures are not subject to SEC rules regarding disclosures of non-GAAP financial measures, which may otherwise require a reconciliation of a non-GAAP financial measure to a GAAP financial measure. Reconciliations of non-GAAP financial measures were not provided to and were not relied on by Goldman Sachs or Centerview for purposes of their respective financial analyses and opinions or by the GW Board in connection with its consideration of the Transaction, nor were they provided to Jazz or its financial advisors. Accordingly, we have not provided a reconciliation of these non-GAAP financial measures.

GW does not intend to update or otherwise revise the Forecasts after the date of this proxy statement to reflect circumstances existing since their preparation or to reflect the occurrence of unanticipated events, even in the event that any or all of the underlying assumptions are shown to be in error, or to reflect changes in general economic or industry conditions.

By including the Forecasts in this proxy statement, neither GW nor Jazz nor any of their respective directors, officers, employees or other representatives has made or makes any representation to any person regarding the ultimate performance of GW compared to the information contained in the Forecasts. Accordingly, the Forecasts should not be construed as financial guidance, nor relied on as such. The Forecasts are not included in this proxy statement in order to induce any GW shareholder to vote in favor of the Proposals or to influence any GW

 

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shareholder or any other person to make any investment decision with respect to the Transaction or otherwise, but rather solely because the Forecasts or portions thereof were made available to the GW Board, Jazz and Jazz’s and GW’s respective financial advisors as described above. For the reasons described above, readers of this proxy statement are cautioned not to place undue, if any, reliance on the Forecasts. GW has not made any representation and warranties in the Transaction Agreement concerning the Forecasts.

The July Forecasts included management projections for the following products and product candidates: (i) Epidiolex in Lennox-Gastaut Syndrome, Dravet Syndrome, Rett Syndrome (US only) and tuberous sclerosis complex, (ii) nabiximols / Sativex in multiple sclerosis spasticity, spinal cord injury spasticity, post-traumatic stress disorder (“PTSD”) and additional broad spasticity indications, (iii) development organic products (“development organic products”) in schizophrenia, irritability in adult autism, agitation in dementia, canine epilepsy and epilepsy and (iv) potential cannabinoid science-based product candidates in development (“development platform”) in unspecified indications.

The following table presents the July Forecasts:

July Forecasts of GW Management

($ in millions)

 

    Fiscal Year Ending December 31,  
    2020 E     2021 E     2022 E     2023 E     2024 E     2025 E     2026 E     2027 E     2028 E     2029 E     2030 E     2031 E     2032 E     2033 E     2034 E     2035 E  

Total Revenue(1)

  $ 538     $ 778     $ 1,112     $ 1,597     $ 2,042     $ 2,442     $ 2,736     $ 2,944     $ 3,065     $ 3,236     $ 3,425     $ 2,358     $ 2,483     $ 2,617     $ 2,246     $ 2,284  

EBIT(2)

  $ (65   $ 29     $ 236     $ 570     $ 874     $ 1,146     $ 1,359     $ 1,497     $ 1,632     $ 1,765     $ 1,902     $ 1,221     $ 1,371     $ 1,494     $ 1,278     $ 1,293  

 

(1)

The July Forecasts reflect assessments by GW management of the probability of success (“POS”) for each of the products and product candidates in the indications covered by the July Forecasts.

(2)

“EBIT” is defined as net income before interest expense and tax expense. The July Forecasts excluded unallocated costs, including corporate costs.

The December Forecasts included management projections for the following products and product candidates: (i) Epidiolex in Lennox-Gastaut Syndrome, Dravet Syndrome and tuberous sclerosis complex, (ii) nabiximols / Sativex in multiple sclerosis spasticity and spinal cord injury spasticity, (iii) development organic products in schizophrenia, irritability in adult autism, agitation in dementia, canine epilepsy and epilepsy and (iv) development platform in unspecified indications.

The December Forecasts were generally prepared by GW management on the basis of the same assumptions as the July Forecasts, with the following key differences in the assumptions underlying the December Forecasts relative to the assumptions underlying the July Forecasts:

 

   

the removal of Rett Syndrome as a target indication for Epidiolex in light of the suspension of GW’s ongoing Phase 3 clinical trial of Epidiolex in children with Rett Syndrome due to the impacts of the COVID-19 pandemic;

 

   

the removal of PTSD as a target indication for nabiximols / Sativex given GW’s decision after the July Forecasts had been prepared to delay the initiation of a planned study of nabiximols in PTSD and reassess the study in the second half of 2021;

 

   

the removal of broad spasticity as a target indication for nabiximols / Sativex given that GW had already incorporated multiple sclerosis spasticity and spinal cord injury spasticity as target indications and a clinical program for broad spasticity had not yet been determined;

 

   

the decrease in the POS assigned to development platform from 12% to 5%, reflecting GW management’s assessment that the POS should be lower to reflect the risks associated with these assets, taking into account commonly used POSs in the industry for pipeline assets of this nature, given that the development platform assets were generally in research, pre-clinical or early clinical trial phases of development;

 

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the decrease in POS adjusted peak sales for the development platform from approximately $240 million to $50 million, reflecting the adjustment in the POS for the development platform and GW management’s assessment of the more likely market opportunity for these assets;

 

   

updating POS adjusted peak sales forecasts for development organic products from $483 to $487;

 

   

other changes to reflect the 2021 budget, which had been approved by the GW Board after the July Forecasts were prepared; and

 

   

certain changes in methodology, such as taking corporate costs and unallocated research and development expense into account in the calculation of EBIT, rather than excluding such costs and expenses.

The following table presents the December Forecasts:

December Forecasts of GW Management

($ in millions)

 

    Fiscal Year Ending December 31,  
    2021 E     2022 E     2023 E     2024 E     2025 E     2026 E     2027 E     2028 E     2029 E     2030 E     2031 E     2032 E     2033 E     2034 E     2035 E  

Total Revenue(1)

  $ 742     $ 1,084     $ 1,518     $ 1,943     $ 2,326     $ 2,456     $ 2,572     $ 2,664     $ 2,779     $ 2,906     $ 1,824     $ 1,897     $ 1,939     $ 1,455     $ 1,413  

Gross Profit

  $ 680     $ 965     $ 1,356     $ 1,738     $ 2,083     $ 2,195     $ 2,297     $ 2,378     $ 2,480     $ 2,592     $ 1,618     $ 1,682     $ 1,719     $ 1,284     $ 1,246  

EBIT(2)

  $ 12     $ 221     $ 530     $ 822     $ 1,081     $ 1,210     $ 1,292     $ 1,399     $ 1,500     $ 1,605     $ 906     $ 1,014     $ 1,067     $ 779     $ 743  

EBIT (Excl. Unallocated R&D)(3)

  $ 12     $ 221     $ 530     $ 857     $ 1,155     $ 1,303     $ 1,471     $ 1,619     $ 1,745     $ 1,882     $ 1,108     $ 1,164     $ 1,200     $ 849     $ 808  

 

(1)

The December Forecasts reflect assessments by GW management of the POS for each of the products and product candidates in the indications covered by the December Forecasts.

(2)

“EBIT” is defined as net income before interest expense and tax expense. The December Forecasts allocate unallocated research and development expense to Epidiolex, nabiximols and new organic products pro rata based on product spend as a percentage of total product-attributable spend in each year.

(3)

“EBIT (Excl. Unallocated R&D)” is defined as EBIT excluding unallocated research and development expense.

In addition, each of Goldman Sachs and Centerview calculated, from the December Forecasts, GW’s unlevered free cash flow as set forth below, which calculations were not made available to Jazz or its financial advisors:

GW Unlevered Free Cash Flow Calculated by Goldman Sachs

($ in millions)

 

    Fiscal Year Ending December 31,  
    2021 E     2022 E     2023 E     2024 E     2025 E     2026 E     2027 E     2028 E     2029 E     2030 E     2031 E     2032 E     2033 E     2034 E     2035 E  

Unlevered Free Cash Flow(1)(2)

  $ (25   $ 154     $ 423     $ 681     $ 913     $ 1,052     $ 1,125     $ 1,222     $ 1,309     $ 1,399     $ 905     $ 885     $ 935     $ 734     $ 658  

 

(1)

GW’s unlevered free cash flow is defined as EBIT plus depreciation and amortization less taxes, capital expenditures and changes in net working capital.

(2)

Reflects projected tax savings of $2, $13, $30 and $40 from the application of net operating losses for fiscal years 2021, 2022, 2023 and 2024, respectively.

 

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GW Unlevered Free Cash Flow (Excl. Unallocated R&D) Calculated by Centerview

($ in millions)

 

    Fiscal Year Ending December 31,  
    2021 E     2022 E     2023 E     2024 E     2025 E     2026 E     2027 E     2028 E     2029 E     2030 E     2031 E     2032 E     2033 E     2034 E     2035 E  

Unlevered Free Cash Flow (Excl. Unallocated R&D)(1)(2)

  $ (25   $ 154     $ 423     $ 712     $ 978     $ 1,134     $ 1,283     $ 1,416     $ 1,524     $ 1,643     $ 1,083     $ 1,017     $ 1,052     $ 795     $ 715  

 

(1)

GW unlevered free cash flow (excluding unallocated research and development expense) is defined as EBIT (excluding unallocated research and development expense) plus depreciation and amortization less taxes, capital expenditures and changes in net working capital.

(2)

Reflects projected tax savings of $1, $13, $29 and $40 from the application of net operating losses for fiscal years 2021, 2022, 2023 and 2024, respectively.

The following tables present the calculation by each of Goldman Sachs and Centerview of the utilization of GW’s net operating losses in the UK based on (i) GW’s projected net operating loss balance of $697 million as of December 31, 2020 (based on an assumed GBP to USD exchange rate of 1.35 to 1) per GW management, (ii) GW’s future losses based on the December Forecasts and (iii) an assumed tax rate of 12% per GW management. GW management authorized Goldman Sachs and Centerview to use these calculations for purposes of their financial analyses.

GW Net Operating Loss Utilization Used by Goldman Sachs

($ in millions)

 

     2021 E      2022 E      2023 E      2024 E  

Beginning NOL Balance

   $ 697      $ 684      $ 577      $ 329  

NOL Decrease(1)

     (13      (107      (247      (329

Ending NOL Balance

   $ 684      $ 577      $ 329      $ —    

 

(1)

Taxable income for NOL usage calculated as sum of EBIT and cash interest income.

GW Net Operating Loss Utilization Used by Centerview

($ in millions)

 

     2021 E      2022 E      2023 E      2024 E  

Beginning NOL Balance

   $ 697      $ 685      $ 579      $ 333  

NOL Decrease(1)

     (12      (106      (245      (333

Ending NOL Balance

   $ 685      $ 579      $ 333      $ —    

 

(1)

Taxable income for NOL usage calculated as EBIT (Excl. Unallocated R&D).

Financing of the Transaction

Jazz expects that the cash consideration due to GW shareholders under the Transaction Agreement and the Scheme of Arrangement will be approximately $6.5 billion. Jazz expects to fund the cash consideration and Bidco Group’s closing date cash requirements through a combination of debt financing, as further described below, and cash on hand.

The consummation of the Transaction is not conditioned upon Jazz obtaining the proceeds of any financing.

In connection with the Transaction, Jazz has entered into an amended and restated commitment letter, dated February 19, 2021 (the “debt commitment letter”), from Bank of America, N.A., BofA Securities, Inc., JPMorgan Chase Bank, N.A., Barclays Bank PLC, Citigroup Global Markets Inc., Credit Suisse Loan Funding

 

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LLC, Credit Suisse AG, Cayman Islands Branch, DNB (UK) Ltd., MUFG Bank, Ltd., Royal Bank of Canada, Sumitomo Mitsui Banking Corporation, Truist Bank, and Truist Securities, Inc. (collectively, the “debt commitment parties”) to provide, severally but not jointly, upon the terms and subject to the conditions set forth in the debt commitment letter, acquisition debt financing consisting of (i) senior secured credit facilities in the aggregate amount of $3,650 million, comprised of a $500 million five-year revolving credit facility and a $3,150 million seven-year term loan facility and (ii) a senior secured bridge loan facility in the amount of $2,200 million (collectively, the “debt financing”). Prior to or concurrently with the closing, Jazz expects to issue up to $2,200 million of debt securities, the issuance of which will reduce commitments under the bridge loan facility dollar for dollar. The aggregate proceeds of the debt financing and any offering of debt securities will be used in part for the payment of Bidco Group’s closing date cash requirements and for general corporate purposes.

The obligations of the debt commitment parties to provide the debt financing under the debt commitment letter are subject to a number of conditions, including:

 

   

the effective time (being the time at which the Scheme of Arrangement becomes effective as a result of the delivery of the Court Order to the Registrar of Companies of England and Wales) has occurred, or the effective time will occur immediately prior to or concurrently with the funding of the debt financing, on substantially the terms set forth in the Transaction Agreement without giving effect to any amendments, waivers or consents under the Transaction Agreement by Jazz or its applicable subsidiary that are materially adverse to the lenders of the debt financing (the “lenders”) in their capacities as such (each, a “Materially Adverse Modification”) and that have not been approved by the debt commitment parties (except that (i) any waiver or consent required by the Court in order for the Court to sanction the scheme (a “Court Waiver”) will be deemed not to be adverse to the lenders in their capacities as such and (ii) any change to the definition of “Material Adverse Effect” or certain related provisions in the Transaction Agreement (other than any change that is a Court Waiver) will be deemed to be materially adverse to the lenders in their capacities as such), except that, if the conditions precedent to the obligations of Jazz to consummate the Transaction under the Transaction Agreement (other than those conditions that by their nature are to be satisfied at the closing) have been satisfied or waived (without any Materially Adverse Modification) (any date on which such conditions are satisfied or waived, the “Satisfaction Date”) and Jazz delivers a notice in writing to the debt commitment parties confirming such satisfaction or waiver, then the condition precedent in this paragraph will be deemed to have been satisfied on the Satisfaction Date, subject to the effective time occurring within three business days following delivery of such notice;

 

   

the solvency representation set forth in the debt commitment letter and certain representations and warranties made by GW pursuant to the Transaction Agreement that are material to the interests of the lenders will be true and correct in all material respects as of immediately prior to the time of the commencement of the Court Sanction Hearing, and certain other specified representations set forth in the debt commitment letter will be true and correct in all material respects as of the closing, in each case to the extent required by the debt commitment letter;

 

   

the refinancing of Jazz’s existing credit facility will have been consummated or will be substantially consummated concurrently with the funding of the debt financing;

 

   

certain audited, unaudited and pro forma financial statements specified in the debt commitment letter will have been delivered;

 

   

certain customary closing deliverables (including, but not limited to, a solvency certificate in agreed form) will have been delivered;

 

   

documentation and other information about the borrowers and the guarantors required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including the Patriot Act and the Beneficial Ownership Regulation) will have been delivered;

 

   

applicable fees and expenses required to be paid under the debt commitment letter and related fee letter will have been paid;

 

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definitive documentation, including documentation required to create and perfect the secured parties’ security interests in the collateral to the extent contemplated by the debt commitment letter, will have been executed and delivered;

 

   

appointment of investment banks satisfactory to the lead arrangers to publicly offer or privately place the secured notes to be issued on the closing date, and provision to those investment banks of an offering memorandum in respect of those notes and customary supporting documentation and information; and

 

   

the 15 consecutive business day marketing period (as defined and further described under the section entitled “The Transaction Agreement—Financing of the Transaction” beginning on page 111 of this proxy statement) will have been completed.

In the event the closing does not occur on or before 11:59 p.m. (New York time) on the end date (as defined and further described the section entitled “The Transaction Agreement—Termination of the Transaction Agreement” beginning on page 116 of this proxy statement) (or, if the end date shall have been extended (on one or more occasions) under the Transaction Agreement, then on such extended end date), the commitments under the debt commitment letter will automatically expire and terminate at such time. Additionally, the debt commitment letter will terminate upon the earlier of (i) the valid termination of the Transaction Agreement in accordance with its terms or (ii) the completion of the Transaction with the use of the debt financing contemplated by the debt commitment letter (after the funding thereof) or without the use of the debt financing contemplated by the debt commitment letter (unless the debt commitment parties have failed to fund in breach of their obligations under the debt commitment letter).

The documentation governing the debt financing contemplated by the debt commitment letter and any debt securities has not been finalized and, accordingly, the actual terms of the debt financing may differ from those described in this proxy statement, subject to the limitations of the Transaction Agreement, which are described under the section entitled “The Transaction Agreement—Financing of the Transaction” beginning on page 111 of this proxy statement.

Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction

GW’s non-employee directors and executive officers may be deemed to have, similar to other transactions of this type, certain financial interests in the Transaction that may be different from, or in addition to, the interests of the GW shareholders generally. The members of the GW Board were aware of and considered these interests in reaching the determination to approve the agreement and recommend to the GW shareholders that they vote to approve the Proposals. Adam George was an executive officer of GW during 2020 but has since departed from GW. Thomas Lynch, who was as a member of the Board of Directors of GW until he passed away on April 2, 2020, has been omitted from the discussion and tables below, since he is not expected to receive any enhanced benefits in connection with the Transaction.

GW’s executive officers for purposes of the discussion below are Dr. Geoffrey Guy (Executive Chairman), Justin Gover (Chief Executive Officer), Darren Cline (U.S. Chief Commercial Officer), Scott Giacobello (Chief Financial Officer), Dr. Volker Knappertz (Chief Medical Officer), Douglas Snyder (Chief Legal Officer) and Chris Tovey (Chief Operating Officer).

Certain compensation for UK-based executive officers is delivered in British pounds. In calculating the U.S. dollar equivalent for such amounts reported for UK-based executive officers, amounts in British pounds have been converted to U.S. dollars based on the currency exchange rate on March 11, 2021, which is £1= U.S.$1.39.

Treatment of Equity and Equity-Based Awards

For information regarding beneficial ownership of GW ordinary shares, GW ADSs and share options, other than the unvested equity-based awards described below, by each of GW’s non-employee directors and named

 

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executive officers and all of the directors and executive officers as a group, please see the section entitled “Security Ownership of Certain Beneficial Owners and Management” beginning on page 134 of this proxy statement. Each of GW’s non-employee directors and executive officers will be entitled to receive, for each GW ordinary share or GW ADS he or she holds, the same transaction deliverables as other shareholders as described in the section entitled “The Transaction Agreement—Scheme Deliverables to GW Shareholders” beginning on page 97 of this proxy statement.

As described further in the section entitled “The Transaction Agreement—Treatment of Equity and Equity-Based Awards” beginning on page 98 of this proxy statement, each Pre-2021 Share Option and each Share Option granted following the date of the Transaction Agreement to GW’s non-employee directors will fully vest (with any performance goals deemed fully satisfied as of the effective time) and will be exercised automatically and cash-settled upon the effective time. Each 2021 Share Option will become vested and will be exercised automatically and cash-settled as to one-third of the grant at the effective time, and the remaining two-thirds of the grant will be converted into an option to acquire Jazz ordinary shares (with any performance goals deemed fully satisfied as of the effective time and, therefore, converting into time vesting Jazz Options), half of which will vest on the first anniversary of the original grant date and half of which will vest on the second anniversary of the original grant date, subject to accelerated vesting in connection with qualifying terminations of employment. The number of Jazz ordinary shares subject to each converted Jazz Option will be determined by multiplying the GW option exchange ratio described in the Transaction Agreement by the number of GW ADSs subject to the 2021 Share Option, and the option exercise price of any converted Jazz Option will be determined by dividing the 2021 Share Option exercise price by the same GW option exchange ratio.

Any such converted awards held by GW’s executive officers will vest upon the executive officer’s subsequent termination without cause or resignation for good reason in accordance with the applicable GW Severance Plan (as defined below) or upon the executive officer’s death or permanent disability.

The following table sets forth the number of unvested Pre-2021 Share Options and 2021 Share Options held by each of GW’s non-employee directors and executive officers as of March 11, 2021, the latest practicable date to determine such amounts before the filing of this proxy statement, and the cash amounts payable (on a pre-tax basis) in respect thereof.

The amounts reflected in the table below include the value of 2021 Share Options but exclude any GW awards that are expected to vest or be paid in accordance with their terms prior to May 1, 2021 (the assumed date of the completion of the Transaction solely for purposes of this transaction-related compensation disclosure). Each Share Option is valued based on the difference between the per share exercise price of such Share Option and the value of the transaction deliverables, valued at approximately $220 per GW ADS consisting of $200 in cash and approximately $20 in Jazz ordinary shares, with the value of such Jazz ordinary shares to be determined using the Jazz average share price and the exchange ratio, as described further in the section entitled “The Transaction Agreement—Scheme Deliverables to GW Shareholders” beginning on page 97 of this proxy statement.

 

Name

   Unvested Share Options      Total  
     (# GW ADSs)      ($)      ($)  

Directors

        

James Noble

     6,381      $ 1,166,519      $ 1,166,519  

Cabot Brown

     6,381      $ 1,166,519      $ 1,166,519  

Catherine Mackey

     6,381      $ 1,166,519      $ 1,166,519  

Alicia Secor

     6,381      $ 1,166,519      $ 1,166,519  

William Waldegrave

     6,381      $ 1,166,519      $ 1,166,519  

David Gryska

     4,806      $ 1,057,224      $ 1,057,224  

 

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Name

   Unvested Pre-2021 Share
Options
     Unvested 2021 Share
Options
     Total  
    

(# GW

ADSs)

     ($)      (# GW
ADSs)
     ($)      ($)  

Executive Officers

              

Geoffrey Guy

     53,742      $ 10,743,561        17,836      $ 3,923,876      $ 14,667,437  

Justin Gover

     105,788      $ 21,103,706        35,639      $ 7,840,518      $ 28,944,224  

Darren Cline

     38,150      $ 7,563,099        10,159      $ 2,235,080      $ 9,798,179  

Scott Giacobello

     32,576      $ 6,532,636        9,495      $ 2,088,710      $ 8,621,346  

Volker Knappertz

     35,185      $ 7,048,315        10,357      $ 2,278,479      $ 9,326,794  

Douglas Snyder

     33,920      $ 6,793,196        9,820      $ 2,160,422      $ 8,953,618  

Chris Tovey

     30,169      $ 6,033,924        9,136      $ 2,009,737      $ 8,043,661  

Adam D. George

     2,676      $ 588,720           —        $ 588,720  

Severance Entitlements

Each of GW’s U.S.-based executive officers (Messrs. Gover, Cline, Giacobello, Snyder and Dr. Knappertz) participates in the Greenwich Biosciences Amended and Restated Change in Control and Severance Benefit Plan (the “U.S. Severance Plan”) and is party to a participation agreement thereunder. Each of GW’s UK-based executive officers (Dr. Guy and Mr. Tovey) participates in the GW Change in Control and Severance Benefit Plan (the “UK Severance Plan”, and together with the U.S. Severance Plan, the “GW Severance Plans”) and is party to a participation agreement thereunder.

Under the U.S. Severance Plan and the applicable participation agreement, in the event each of Messrs. Gover, Cline, Giacobello, Snyder and Dr. Knappertz’s employment terminates without “cause” or for “good reason” (each such term as defined in the U.S. Severance Plan and summarized below) during the period commencing one month prior to or 24 months following a Change in Control of GW (as defined in the U.S. Severance Plan), the executive officer would (subject to the executive officer executing a release of claims in favor of GW and certain other conditions) be each entitled to (i) cash severance payments equal to the sum of his (x) base salary and (y) the greater of the executive’s annual target bonus for the year of termination and average actual annualized bonuses earned in respect of the three most recent fiscal years (such greater amount, the “severance bonus amount”), multiplied by (a) two, in the case of Mr. Gover, and (b) one and one-half, in the case of the other U.S. executives officers; (ii) payment of COBRA premiums for continued medical coverage for up to 18 months (in the case of Mr. Gover, 24 months) and (iii) outplacement benefits for up to 6 months not to exceed $15,000 (other than Mr. Gover).

Under the UK Severance Plan and the applicable participation agreement, in the event Dr. Guy’s employment terminates without “cause” or for “good reason” (each such term as defined in the UK Severance Plan and summarized below) within 24 months following a Change in Control of GW (as defined in the UK Severance Plan), he would (subject to the executive officer executing a release of claims in favor of GW and certain other conditions) be entitled to: (i) cash severance payments equal to two times his base salary (without reduction for working time during any notice periods under his employment agreement); and (ii) payment of premiums for continued medical coverage for up to 24 months. Under the UK Severance Plan and the applicable participation agreement, in the event Mr. Tovey’s employment terminates without cause or for good reason within 24 months following a Change in Control of GW, he would be entitled to: (i) cash severance payments equal to one and one-half times the sum of his base salary and severance bonus amount (without reduction for working time during any notice periods under an employment agreement) and (ii) payment of premiums for continued medical coverage for up to 18 months.

Under the GW Severance Plans, “good reason” generally means: (i) a material reduction in the executive officer’s authority, duties or responsibilities, or solely for Messrs. Cline, Giacobello, Snyder and Dr. Knappertz, a material reduction in the authority, duties or responsibilities of the supervisor to whom the executive officer is required to report; (ii) a material reduction of the executive officer’s annual base salary; (iii) a relocation of the executive officer’s principal place of employment to a place that increases his one-way commute by more than

 

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35 miles; or (iv) a material breach of the GW Severance Plans by any successor to GW in a Change in Control. Under the GW Severance Plans, “cause” generally means “cause” or “summary termination” (as applicable) as defined in the executive officer’s employment agreement; or any of the following events: (i) conviction, indictment or pleading guilty or no contest to (A) for purposes of the U.S. Severance Plan, any felony or any crime involving fraud, dishonesty or moral turpitude; and (B) for purposes of the UK Severance Plan, any criminal offence (except for an offence under the road traffic legislation in the UK or abroad for which the executive officer is not sentenced to any term of imprisonment); (ii) intentional misconduct; (iii) sustained poor job performance and/or failure to meet material performance or production standards (as determined by the administrator of the applicable GW Severance Plan in good faith); (iv) unauthorized use or disclosure of confidential information or trade secrets of any member of the Company Group (as defined in the GW Severance Plan); (v) attempted commission of, or participation in, a fraud or act of dishonesty against any member of the Company Group; (vi) material violation of any contract or agreement between the executive officer and any member of the Company Group, of any applicable written policy of a member of the GW group, or of any statutory duty owed to any member of the Company Group; (vii) intentional act that has or is reasonably likely to lead to a material detrimental effect on the reputation or business of any member of the Company Group; or (viii) failure to cooperate with any member of the Company Group in any investigation or formal proceeding.

Due to the critical nature of their roles and responsibilities, each of GW’s executive officers has agreed to remain with the combined company to assist in post-transaction integration, during an important period following the effective time, and accordingly that resignation for “good reason”, if any, would not take effect until the later of: (x) December 31, 2021; and (y) 180 days after the effective time, subject to the participant having provided the GW Board at least thirty (30) days’ notice prior to the effective date of any such resignation. In connection with this agreement, Mr. Tovey is eligible to receive an additional amount equal to six months of his base salary on terms consistent with those described under “Transition Incentive Bonuses” below.

The Transaction will constitute a Change of Control of GW for purposes of the GW Severance Plans. The estimated aggregate value of the cash severance payments GW’s executive officers would receive in the event of a qualifying termination upon the completion of the Transaction is $9,566,430. The foregoing estimate is based on compensation and benefit levels in effect as of March 11, 2021.

Transition Incentive Bonuses

As noted above, given the critical nature of their roles and responsibilities, in order to retain and incentivize certain of GW’s executives through the closing of the Transaction and during an important integration period thereafter, GW agreed that the executive officers would be eligible to receive the following incentive bonuses: Mr. Gover—$7,600,000; Mr. Cline—$2,300,000; Mr. Giacobello—$2,550,000; Mr. Snyder—$2,600,000; and Dr. Knappertz—$2,600,000. Each such transition incentive bonus will be payable in a lump sum within 30 days following the later of December 31, 2021 or six months following the effective time (in each case, subject to the executive’s continued employment with Jazz, GW or their respective subsidiaries as of such time) or, if earlier, within 30 days following the executive’s death, permanent disability or a qualifying termination under the applicable GW Severance Plan and the executive’s applicable participation agreement, subject to the execution of a release of claims against GW.

New Management Arrangements

As of the date of this proxy statement, there are no employment, retention or other agreements, arrangements or understandings between any of GW’s non-employee directors or executive officers, on the one hand, and Jazz, on the other hand, and the Transaction is not conditioned upon any of GW’s non-employee directors or executive officers entering into any such agreement, arrangement or understanding.

Continuing Employee Benefits

The Transaction Agreement provides that from the closing date of the Transaction through December 31, 2022 (such period being the “benefits continuation period”), Jazz will cause GW to provide, to each individual who is

 

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employed by GW and its subsidiaries immediately prior to the effective time, while such individual continues to be employed by GW, Jazz or any of Jazz’s subsidiaries (including subsidiaries of GW) during the benefits continuation period (collectively, the “affected employees”): (i) an annual base salary or wage rate that is not less than the annual base salary or wage rate provided to such affected employee immediately prior to the effective time, (ii) for any affected employee who prior to the effective time participated in a 2021 GW bonus plan, an annual target cash bonus opportunity that is no less favorable than was provided to such affected employee immediately prior to the effective time (with such opportunity to be granted pursuant to the applicable Jazz annual bonus plan), (iii) to the extent an affected employee is eligible for a long-term incentive award under Jazz’s long-term incentive program (such eligibility determination to be the same as that applied to similarly situated employees of Jazz and its affiliates), a target grant date value long-term incentive opportunity that is no less favorable than was provided to such affected employee immediately prior to the effective time (such target grant date value, the “GW LTIP value”), provided that with respect to any affected employee who is not so eligible, Jazz will provide, or cause GW to provide, each such affected employee an equity or cash-based award or cash compensation adjustment equal to the GW LTIP value applicable to such employee, and (iv) other compensation and employee benefits (excluding severance benefits, which are addressed in the following sentence) that are no less favorable in the aggregate to such compensation and employee benefits (including retirement, employee health, AD&D and life insurance benefits) that are at such time(s) provided to similarly situated employees of Jazz or its affiliates (provided that such benefits in the UK will include participation in a private medical insurance scheme comparable to that provided by GW prior to the effective time), which obligation may be satisfied with respect to any particular compensation or benefit through the maintenance of a GW benefit plan that provides such compensation or benefits (e.g., commission plans).

In addition, during the 24 months following the effective time, Jazz will or will cause any of Jazz’s subsidiaries to honor the terms of GW Severance Plans generally, to the extent any affected employee experiences a termination of employment under circumstances that would give such employee the right to receive severance benefits under the applicable severance plan (a “qualifying termination”). In the event the effective time occurs before the date annual bonuses for the 2021 fiscal year are paid under any GW annual cash incentive compensation plan identified in confidential disclosures made to Jazz and Bidco, Jazz will, or will cause GW to, pay annual bonuses for the 2021 fiscal year to each affected employee who participated in such 2021 annual bonus plan immediately prior to the effective time in an amount equal to the sum of (A) a prorated portion of the affected employee’s target bonus as established under such GW annual cash incentive compensation plan for the 2021 fiscal year, with any such proration based on the number of days that elapsed during the 2021 calendar year through the closing date, plus (B) a prorated portion of the amount of annual bonus that would have been due for the full 2021 fiscal year based on actual results for such fiscal year, as determined in accordance with the provisions of the Transaction Agreement and pursuant to the applicable Jazz annual bonus plan in which such affected employee participated after the effective time, with any such proration based on the number of days that elapsed during the 2021 calendar year from and including the closing date through and including December 31, 2021, which bonuses will be paid at the same time as any other annual bonuses are paid to the other participants in the applicable 2021 Jazz annual bonus plan. Notwithstanding the foregoing, any employee of GW or its subsidiaries who experiences a severance-qualifying termination under the applicable GW severance plan will be entitled to receive an annual bonus for the 2021 fiscal year equal to the affected employee’s target annual bonus amount under the 2021 GW annual bonus plan, prorated based on the number of days that elapsed during the 2021 calendar year through the date of such qualifying termination divided by 365 and subject to execution and delivery of an effective release of claims.

Indemnification; Directors’ and Officers’ Insurance

Bidco and Jazz have agreed, to the extent permitted under applicable law, that all rights to exculpation, indemnification and advancement of expenses for acts or omissions occurring at or prior to the effective time existing as of February 3, 2021, in favor of the current or former directors or officers of GW and its subsidiaries as provided for in their respective articles of association, organizational documents or in any agreement or deed of indemnity will survive the Transaction and continue in accordance with their terms.

 

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In addition, for a period of six years following the effective time, Bidco must cause GW and its subsidiaries to maintain such current policies of directors’ and officers’ liability insurance and fiduciary liability insurance or substitute policies with coverage, benefits and terms at least as favorable as GW’s existing policies with respect to acts or omissions occurring at or prior to the effective time, subject to certain premium thresholds.

Alternatively, either party may purchase a six-year prepaid “tail policy” with coverage, benefits and terms at least as favorable as GW’s existing policies of directors’ and officers’ liability insurance and fiduciary liability insurance with respect to acts or omissions occurring or alleged to have occurred prior to the effective time, subject to certain premium thresholds. If such a “tail policy” is purchased, Jazz and Bidco will have no further obligation to maintain the insurance policies described above. For additional information see the section entitled “The Transaction Agreement—Indemnification” beginning on page 113 of this proxy statement.

Quantification of Payments and Benefits

In accordance with Item 402(t) of Regulation S-K, the table below sets forth for each of GW’s named executive officers estimates of the amounts of compensation that are based on or otherwise relate to the Transaction and that will or may be paid or become payable to the named executive officer either immediately at the effective time (i.e., on a “single-trigger” basis) or in the event of a qualifying termination of employment following the Transaction (i.e., on a “double-trigger” basis). GW shareholders are being asked to approve, on a non-binding, advisory basis, such compensation for these named executive officers. Because the vote to approve such compensation is advisory only, it will not be binding on either GW, the GW Board or Jazz. Accordingly, if the Scheme of Arrangement and related proposals are approved by GW shareholders and the Transaction is completed, the compensation will be payable regardless of the outcome of the vote to approve such compensation, subject only to the conditions applicable thereto, which are described in the footnotes to the tables below and above under “—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction”.

The potential payments in the tables below are quantified in accordance with Item 402(t) of Regulation S-K. The estimated values are based on (i) an assumption that the Transaction is completed on May 1, 2021, (ii) the per share transaction deliverables of $220, (iii) the named executive officers’ salary and total eligible bonus levels as in effect as of March 11, 2021, (iv) the number of unvested GW awards held by the named executive officers as of the Voting Record Time, the latest practicable date to determine such amounts before the filing of this proxy statement, and excluding any additional grants that may occur following such date and any GW awards that are expected to vest or be paid in accordance with their terms prior to May 1, 2021, and (v) an assumption that each named executive officer experiences a “qualifying termination” for purposes of receiving benefits under the applicable GW Severance Plan, immediately following the completion of the Transaction (except in the case of the 2021 annual bonus, for which a termination date of December 31, 2021 is assumed). In addition, the amounts indicated below are estimates based on multiple assumptions that may or may not actually occur, including assumptions described in this proxy statement, and do not reflect certain compensation actions that may occur before completion of the Transaction. As a result, the actual amounts, if any, to be received by a named executive officer may materially differ from the amounts set forth below.

Potential Payments to Named Executive Officers

 

Name

   Cash ($)(1)      Equity ($)(2)      Perquisites /
Benefits ($)(3)
     Total ($)  

Dr. Geoffrey Guy

   $ 1,215,113      $ 14,667,437      $ 6,210      $ 15,888,760  

Justin Gover

   $ 10,071,472      $ 28,944,224      $ 42,240      $ 39,057,936  

Scott Giacobello

   $ 3,637,101      $ 8,621,346      $ 46,680      $ 12,305,127  

Dr. Volker Knappertz

   $ 3,798,681      $ 9,326,794      $ 46,680      $ 13,172,155  

Douglas Snyder

   $ 3,742,806      $ 8,953,618      $ 46,680      $ 12,743,104  

 

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(1)

The estimated amounts shown in this column include the value of cash severance payments (assuming annual base salary and target bonus amounts in effect as of March 11, 2021) that would be provided to the named executive officer upon a termination of employment by GW without “cause” or by the named executive officer for “good reason”, conditioned upon the executive officer executing a release. As described in the section entitled “—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction—Severance Entitlements” on page 89, each named executive officer would be entitled to cash severance payments equal to the sum of his base salary and his severance bonus amount, multiplied by two in the case of Mr. Gover and one and one-half in the case of the other named executive officers other than Dr. Guy. Dr. Guy would be entitled to cash severance payments equal to two times his base salary (without reduction for working time during any notice periods under his employment agreement). In addition, the estimated amounts shown in this column include the value of following transition incentive bonuses that would be provided to the named executive officers: Mr. Gover—$7,600,000; Mr. Giacobello—$2,550,000; Dr. Knappertz—$2,600,000; and Mr. Snyder—$2,600,000. Both the cash severance payments and transition incentive bonuses are “double-trigger” in that they will be paid only if the executive officer experiences a qualifying termination of employment following the effective time (or otherwise vest in accordance with their terms). The estimated amounts shown in this column also represent the full value of the 2021 annual bonus that each named executive officer would be entitled to upon a qualifying termination that occurs on December 31, 2021 as described in “Continuing Employee Benefits”, which are “double-trigger” in that they will be paid only if the executive officer experiences a qualifying termination of employment following the effective time (or otherwise vest in accordance with their terms).

(2)

The estimated amounts shown in this column represent the aggregate value of the named executive officers’ unvested Share Options, which include both Pre-2021 Share Options and 2021 Share Options. As described in the section entitled “—Interests of GW’s Non-Employee Directors and Executive Officers in the Transaction—Treatment of Equity and Equity-Based Awards” beginning on page 87, the estimated payments in respect of each named executive officer’s unvested Pre-2021 Share Options and the first tranche (1/3) of the 2021 Share Options are “single-trigger”, in that they will vest upon the effective time, whether or not the named executive officer’s employment is terminated. The estimated payments in respect of each named executive officer’s remaining two tranches (2/3) of the 2021 Share Options are “double-trigger”, in that they will vest only if the executive officer experiences a qualifying termination of employment following the effective time (or otherwise vest in accordance with their terms). Details of the single-trigger and double-trigger payments that would be received in connection with outstanding unvested equity awards are shown in the following supplementary table:

 

Name

   Share Options ($)      Total ($)  
     Single-trigger      Double-trigger         

Dr. Geoffrey Guy

   $ 12,051,520      $ 2,615,917      $ 14,667,437  

Justin Gover

   $ 23,717,212      $ 5,227,012      $ 28,944,224  

Scott Giacobello

   $ 7,228,873      $ 1,392,473      $ 8,621,346  

Dr. Volker Knappertz

   $ 7,807,808      $ 1,518,986      $ 9,326,794  

Douglas Snyder

   $ 7,513,337      $ 1,440,281      $ 8,953,618  

 

(3)

The estimated amounts shown in this column represent (i) the company-paid portion of the continued medical for 18 months (and in the case of Dr. Guy and Mr. Gover, 24 months) following termination and (ii) outplacement benefits of $15,000 (other than Dr. Guy and Mr. Gover). These are “double-trigger” benefits as they will be paid to the named executive officer only if the named executive officer experiences a qualifying termination of employment following the effective time.

GW ADSs

GW ADS holders should refer to the section entitled “Scheme Proposal and the Court Meeting and the General Meeting-Explanatory Statement—9. GW ADS Holders” beginning on page 42 of this proxy statement.

 

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Regulatory and Court Approvals Required for the Transaction

Completion of the Transaction is conditional on, among other things, (i) required antitrust clearances and (ii) the sanction of the Scheme of Arrangement by the Court.

United States Antitrust

Under the HSR Act, certain transactions, including the Transaction, may not be completed until certain waiting period requirements have expired or been terminated. The HSR Act provides that each party must file a notification with the Federal Trade Commission (“FTC”) and the Antitrust Division of the Department of Justice (“DOJ”). A transaction notifiable under the HSR Act may not be completed until the expiration of a 30-calendar-day waiting period following the parties’ filings of their respective HSR Act notification forms or the termination of that waiting period, unless the waiting period is extended. If the DOJ or FTC issues a Request for Additional Information and Documentary Material prior to the expiration or termination of the initial waiting period, the parties must observe a second 30-calendar-day waiting period, which would begin to run only after both parties have substantially complied with the Request for Additional Information and Documentary Material, unless the waiting period is terminated earlier. GW and Jazz filed their notification and report forms under the HSR Act on February 19, 2021, and the 30-day waiting period is scheduled to expire at 11:59 p.m. Eastern Time on March 22, 2021, unless extended or earlier terminated.

Court Approval

The Scheme of Arrangement requires the approval of the Court, which involves an application by GW to the Court to sanction the Scheme of Arrangement.

For a description of the commitments made by GW and Jazz to obtain the necessary regulatory and Court approvals for the Transaction, see the section entitled “The Transaction Agreement—Efforts to Complete the Transaction” beginning on page 106 of this proxy statement. There can be no assurance that the requisite approvals will be obtained on a timely basis or at all.

Accounting Treatment

The Transaction is anticipated to be accounted for as an acquisition of a business, pending final assessment upon closing of the Transaction. Jazz anticipates it will record assets acquired and liabilities assumed from GW primarily at their respective fair values at the date of completion of the Transaction. Any excess of the transaction deliverables is anticipated to be recorded to goodwill. The financial condition and results of operations of Jazz after completion of the Transaction will reflect GW balances and results after completion of the Transaction but will not be restated retroactively to reflect the historical financial condition or results of operations at GW.

Exemption from the Registration Requirements of the Securities Act of 1933

The Jazz ordinary shares to be received by GW shareholders in connection with the Transaction will not be registered under the Securities Act or the securities laws of any state of the United States and will be issued in reliance upon the exemption from registration provided by Section 3(a)(10) of the Securities Act and exemptions from or qualifications under the registration requirements under the securities laws of applicable states of the United States. Section 3(a)(10) of the Securities Act exempts the issuance of any securities issued in exchange for one or more bona fide outstanding securities from the registration requirements of the Securities Act, where the fairness of the terms and conditions of the issuance and exchange of such securities have been approved by a court of competent jurisdiction that is expressly authorized by law to grant such approval, after a hearing upon the substantive and procedural fairness of the terms and conditions of such issuance and exchange at which all persons to whom it is proposed to issue the securities have the right to appear, have received timely and adequate

 

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notice thereof and are not subject to improper impediments to their appearance at the hearing. The Court is authorized to conduct a hearing at which the fairness of the terms and conditions of the Scheme of Arrangement will be considered. Accordingly, the Court Order will, if granted, constitute a basis for the exemption from the registration requirements of the Securities Act provided by Section 3(a)(10) thereof with respect to the delivery of the Jazz ordinary shares to GW shareholders in connection with the Transaction.

Delisting and Deregistration of GW ADSs; Listing of Jazz Ordinary Shares

Following the consummation of the Transaction, GW ADSs will be delisted from Nasdaq and deregistered under the Exchange Act, and GW will no longer be required to file periodic reports with the SEC.

The Jazz ordinary shares to be delivered in the Transaction will be listed on Nasdaq.

No Appraisal or Dissenters’ Rights

No appraisal or dissenters’ rights are available to holders of GW ordinary shares and GW ADSs under the laws of England and Wales in connection with the Transaction.

 

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THE TRANSACTION AGREEMENT

Explanatory Note Regarding the Transaction Agreement

The following is a summary of certain material terms of the Transaction Agreement and is qualified in its entirety by reference to the complete text of the Transaction Agreement, which is included as Annex A to this proxy statement and is incorporated herein by reference in its entirety. This summary is not intended to provide you with any other factual information about GW, Jazz or Bidco. You are urged to read the Transaction Agreement carefully and in its entirety as well as this proxy statement before making any decisions regarding the Transaction.

The Transaction Agreement contains representations and warranties by each of the parties to the Transaction Agreement. These representations and warranties have been made solely for the benefit of the parties to the Transaction Agreement; have been made only for purposes of the Transaction Agreement; have been qualified by certain documents filed with, or furnished to, the SEC by GW or by Jazz; have been qualified by confidential disclosures made to GW or Jazz and Bidco, as applicable, in connection with the Transaction Agreement; are subject to materiality qualifications contained in the Transaction Agreement that may differ from what may be viewed as material by investors; were made only as of February 3, 2021 or such other date as is specified in the Transaction Agreement; and have been included in the Transaction Agreement for the purpose of allocating risk between GW, on the one hand, and Jazz and Bidco, on the other hand, rather than establishing matters as facts.

You should not rely on the representations and warranties or any descriptions thereof as characterizations of the actual state of facts or condition of GW, Jazz, Bidco or any of their respective affiliates or businesses. Moreover, information concerning the subject matter of the representations and warranties may change after February 3, 2021, which subsequent information may or may not be fully reflected in GW’s or Jazz’s public disclosures. Accordingly, the representations and warranties and other provisions of the Transaction Agreement should not be read alone, but instead should be read together with the information provided elsewhere in this proxy statement and in the documents incorporated by reference into this proxy statement. See “Where You Can Find More Information” beginning on page 171 of this proxy statement.

Structure of the Transaction

The Transaction Agreement provides that, subject to the satisfaction or waiver of the conditions to the completion of the Transaction, Bidco (and/or, at Bidco’s election, Jazz and/or the DR Nominee) will acquire the entire issued and to be issued share capital of GW pursuant to a scheme of arrangement under Part 26 of the United Kingdom Companies Act 2006 (the “Scheme of Arrangement”). Upon completion of the Transaction, GW will be an indirect, wholly owned subsidiary of Jazz.

Closing and Effective Time

Unless GW and Bidco agree otherwise, the closing of the Transaction (the “closing”) will take place as promptly as practicable (and in any event within two business days) following the satisfaction or (to the extent permitted by applicable law) waiver of the conditions to the completion of the Transaction (other than those conditions that by their nature are to be satisfied at the closing, but subject to the satisfaction or waiver of such conditions). The date on which the closing actually occurs is referred to as the “closing date”.

However, if the marketing period (as described below under “—Financing of the Transaction—Marketing Period”) has not ended at the time of the satisfaction or (to the extent permitted by applicable law) waiver of the conditions to the completion of the Transaction (other than (A) those conditions that by their nature are to be satisfied at the closing, but subject to those conditions being able to be satisfied or having been waived, and (B) the condition that the Scheme of Arrangement will have been sanctioned by the Court), then GW will schedule the Court Sanction Hearing as promptly as practicable after the earlier of (x) a date during the

 

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marketing period specified by Bidco and (y) the date that is three business days after the final day of the marketing period or such shorter period as Bidco may specify by notice to GW (subject, in the case of each of (x) and (y), to the satisfaction or (to the extent permitted by applicable law) waiver of the conditions to the completion of the Transaction (other than (i) those conditions that by their nature are to be satisfied at the closing, but subject to those conditions being able to be satisfied or having been waived, and (ii) the condition that the Scheme of Arrangement will have been sanctioned by the Court).

The Scheme of Arrangement will become effective upon delivery by GW of the Court Order to the Registrar of Companies in England and Wales.

Scheme Deliverables to GW Shareholders

At the effective time, the holders of GW ordinary shares (including the GW ordinary shares held by the Depositary that underlie the outstanding GW ADSs) as of a record time of 6:00 p.m. (London time) on the business day immediately preceding the effective time will have the right to receive for each GW ordinary share held by them at such time an amount equal to (i) $16.6623 in cash, without interest (the “cash consideration”) and (ii) an amount of Jazz ordinary shares equal to the exchange ratio (defined below) (together with the cash consideration, the “scheme deliverables”). Because each GW ADS represents a beneficial interest in 12 GW ordinary shares, holders of GW ADSs will be entitled to receive (1) 12 times the foregoing cash amount (or $200 in cash (the “per ADS cash consideration”)) and (2) 12 times the share deliverable (the “per ADS share deliverable” and, together with the per ADS cash consideration, the “ADS deliverables”).

The “exchange ratio” will be determined under the Transaction Agreement as follows:

 

   

if the Jazz average share price is greater than $139.72 but less than $170.76, the exchange ratio will be equal to the quotient obtained by dividing (x) $1.6623 by (y) the Jazz average share price, rounded to the nearest millionth of a share (corresponding to a per ADS share deliverable equal to an amount of Jazz ordinary shares equal to the quotient obtained by dividing (x) $20.00 by (y) the Jazz average share price);

 

   

if the Jazz average share price is equal to or less than $139.72, the exchange ratio will be 0.011929 (corresponding to a per ADS share deliverable of 0.143148); and

 

   

if the Jazz average share price is equal to or greater than $170.76, the exchange ratio will be 0.009760 (corresponding to a per ADS share deliverable of 0.117120).

Holders of GW ordinary shares will not receive any fractional Jazz ordinary shares as scheme deliverables. Instead, fractional shares to which holders of GW ordinary shares would otherwise be entitled will be aggregated and sold in the market by the exchange agent as soon as reasonably practicable following the closing date, with the net proceeds of any such sale (after deduction of the expenses of the sale, including taxes) distributed in cash in due proportion to the fractional shares to which a holder would otherwise have been entitled, without interest and subject to any required tax withholding.

The cash consideration is denominated in US dollars. However, a Currency Conversion Facility is being made available to registered holders of GW ordinary shares (other than the Depositary) pursuant to which they will be able to elect (subject to the terms and conditions of the Currency Conversion Facility) to receive the cash consideration in British pounds at the Average Market Exchange Rate obtained by Bidco through one or more market transactions over one or more business days following the Scheme Record Time before the relevant payment date. No Currency Conversion Facility will be made available to the Depositary or holders of GW ADSs. See the sections entitled “Scheme Proposal and the Court Meeting and the General Meeting—Explanatory Statement” and “Notes for Making Currency Elections” beginning on pages 33 and 165, respectively, of this proxy statement for further information.

 

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Following the effective time, each holder of GW ordinary shares will cease to have any rights with respect to such GW ordinary shares, except for the right in accordance with the Scheme of Arrangement to receive the scheme deliverables in consideration therefor.

If, between February 3, 2021 and the effective time, the outstanding GW ordinary shares or Jazz ordinary shares are changed into, or exchanged for, a different number or class of shares or securities by reason of any stock dividend, bonus issue, scrip dividend, subdivision, reorganization, merger, consolidation, reclassification, redesignation, recapitalization, share split, reverse share split, combination or exchange of shares, or a stock or scrip dividend will be declared with a record date within such period, or any similar event occurs (or if the number of GW ordinary shares represented by each GW ADS is changed pursuant to the Deposit Agreement), then the cash consideration and/or exchange ratio (and/or the per ADS cash consideration and/or the per ADS share deliverable), as applicable, will be appropriately adjusted to provide to Bidco and the holders of GW ordinary shares the same economic effect as contemplated by the Transaction Agreement prior to such event.

Treatment of Equity and Equity-Based Awards

At the effective time, subject to all required withholding taxes:

 

   

Each outstanding option to purchase GW ordinary shares or GW ADSs (each, a “Share Option) granted before February 3, 2021 (each, a “Pre-2021 Share Option”) and each Share Option granted following February 3, 2021 to GW’s non-employee directors that is outstanding immediately prior to the effective time, to the extent unvested, will be deemed to be fully vested and each such Share Option will be exercised automatically at the effective time and the holder will be entitled to receive, in full satisfaction of their rights in respect of such Share Option, an amount in cash, without interest, equal to the product of (x) the number of GW ADSs underlying such Share Option (or if such Share Option is in respect of GW ordinary shares, the number of GW ordinary shares divided by 12 (rounded up to the nearest whole number)) and (y) the excess (if any) of the Value (as defined below) of the scheme deliverables over the per share exercise price of each Share Option (or, if the share exercise price is in respect of GW ordinary shares, the share exercise price multiplied by 12). For this purpose, the “Value” means the sum of (i) the product of (A) the per ADS share deliverable multiplied by (B) the opening price on Nasdaq of a Jazz ordinary share on the closing date and (ii) the per ADS cash consideration.

 

   

Each Share Option granted to GW’s employees following February 3, 2021 (each, a “2021 Share Option”) outstanding immediately prior to the effective time, whether vested or unvested, will become vested as to one-third of the 2021 Share Option at the effective time and will be treated in accordance with the previous bullet point. The remaining two-thirds of such 2021 Share Option will cease to represent a right to acquire the GW ADSs and will be converted automatically into an option to acquire Jazz ordinary shares (a “Jazz Option”), half of which will vest on the first anniversary of the original grant date and half of which will vest on the second anniversary of the original grant date, subject to accelerated vesting in connection with qualifying terminations of employment. The number of Jazz ordinary shares subject to each such Jazz Option will be equal to the product of (x) the number of GW ADSs underlying two-thirds of such 2021 Share Option immediately prior to the effective time multiplied by (y) the GW option exchange ratio (as defined below), and rounding such product down to the nearest whole share. The per share exercise price for each such Jazz Option will be determined by dividing (A) the per share exercise price for the GW ADSs underlying such 2021 Share Option immediately prior to the effective time by (B) the GW option exchange ratio (and rounding such quotient up to the nearest whole cent). Any outstanding 2021 Share Option that is, as of immediately prior to the effective time, subject to performance-based vesting, will be deemed to have fully satisfied all applicable performance goals such that the corresponding Jazz Option will only continue to vest over the remaining service-vesting schedule and based on such terms and conditions as GW and Jazz have agreed.

 

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For the purposes of the foregoing, the “GW option exchange ratio” is equal to (1) the sum of (A) the per ADS share deliverable plus (B) the per ADS cash consideration (2) divided by the Jazz average share price.

Exchange of GW Ordinary Shares

Prior to the closing, Bidco will appoint an exchange agent that is reasonably acceptable to GW. At or as promptly as practicable following the effective time (and in any event no later than the business day following the effective time or, if GW provides, by 9:00 a.m., New York time, on the closing date, evidence that the effective time has occurred, on the closing date), Bidco will deposit with the exchange agent for the benefit of the holders of GW ordinary shares (i) certificates or, at Bidco’s option, evidence of Jazz ordinary shares in book-entry form representing the aggregate Jazz ordinary shares deliverable pursuant to the Transaction, and (ii) cash in an amount equal to the aggregate amount of cash consideration payable to holders of GW ordinary shares. Bidco may satisfy its obligations in respect of the GW ordinary shares underlying the GW ADSs held by or on behalf of the Depositary by providing the ADS deliverables directly to the Depositary (or its nominee that is the shareholder of record in respect of such GW ordinary shares (the “Depositary custodian”)).

Prior to the closing, GW and Bidco will establish procedures with the Depositary to ensure that (i) the Depositary (or the Depositary custodian) will promptly deliver the ADS deliverables to each holder of a GW ADS and (ii) GW ADSs will be treated by the Depositary, as closely as reasonably possible, in the same manner as GW ordinary shares are treated by the exchange agent with respect to treatment of fractional shares and other matters specified in the Transaction Agreement. If the parties reasonably deem necessary in furtherance of the establishment of such procedures, GW will enter into one or more amendments to the Deposit Agreement that are reasonably acceptable to the Depositary, GW and Bidco, and GW, Jazz and Bidco will deliver any certificates and opinions of counsel reasonably requested by the Depositary in connection therewith. The GW ADS holders will bear all fees, charges and expenses that they are required to bear under the Deposit Agreement in connection with the Transaction, the cancellation of GW ADSs and the receipt of the ADS consideration. No interest will be paid or accrued on any amount payable in respect of GW ADSs.

Representations and Warranties

The Transaction Agreement contains representations and warranties by each of the parties to the Transaction Agreement. These representations and warranties have been made solely for the benefit of the other parties to the Transaction Agreement; have been made only for purposes of the Transaction Agreement; have been qualified by certain documents filed with, or furnished to, the SEC by GW or by Jazz; have been qualified by confidential disclosures made to GW or Jazz and Bidco, as applicable, in connection with the Transaction Agreement; are subject to materiality qualifications contained in the Transaction Agreement that may differ from what may be viewed as material by investors; were made only as of February 3, 2021 or such other date as is specified in the Transaction Agreement; and have been included in the Transaction Agreement for the purpose of allocating risk between GW, on the one hand, and Jazz and Bidco, on the other hand, rather than establishing matters as facts.

The Transaction Agreement contains substantially reciprocal representations and warranties of GW, on one hand, and Jazz and Bidco, on the other hand, regarding, among other things:

 

   

corporate existence and power;

 

   

authority relative to the execution, delivery and performance of the Transaction Agreement, and the enforceability of the Transaction Agreement;

 

   

absence of conflicts with, or violations of, organizational documents and other agreements or obligations in connection with the execution, delivery and performance of the Transaction Agreement and the consummation of the Transaction and required governmental filings and consents;

 

   

capital structure;

 

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SEC filings and financial statements contained in those filings;

 

   

absence of certain changes and events that would have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (as defined below) from September 30, 2020;

 

   

the absence of certain material litigation, claims and actions;

 

   

compliance with applicable laws since January 1, 2019; and

 

   

broker’s, finder’s, financial advisor’s or similar fees payable in connection with the Transaction.

In addition, GW has further made representations and warranties regarding, among other things:

 

   

corporate existence and power of its subsidiaries;

 

   

absence of undisclosed liabilities and off-balance-sheet arrangements;

 

   

conduct of business in the ordinary course of business from September 30, 2020 through February 3, 2021;

 

   

compliance with applicable permits since January 1, 2019;

 

   

certain regulatory matters relating to the products, product candidates and businesses of GW and its subsidiaries, including compliance with the U.S. Food, Drug and Cosmetic Act of 1938, as amended, other U.S. and foreign healthcare laws applicable to GW and its subsidiaries and the Controlled Substances Act and other U.S. and foreign controlled substance laws applicable to GW and its subsidiaries;

 

   

material contracts;

 

   

tax matters;

 

   

employee compensation and benefits matters;

 

   

labor matters;

 

   

intellectual property, data privacy and information security matters;

 

   

owned and leased real property;

 

   

environmental matters;