Synergy Pharmaceuticals – Court Approves $200mn Sale of of Debtors’ Assets to Bausch Health

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March 1, 2019 – The Court hearing the Synergy Pharmaceuticals case issued an order [Docket No. 484] approving (i) the sale of substantially all of the Debtors' assets (the "Acquired Assets") to Bausch Health (“BH”) for total consideration of approximately $200mn and (ii) the revised asset purchase agreement (the “APA”), dated January 4, 2019, between the Debtors and BH.

As previously reported, on February 26, 2019, the Debtors notified the Court that further to the Court's bidding procedures order [Docket No. 181], the Debtors had selected Bausch Health Companies Inc. and Bausch Health Ireland Limited (together, “BH” or the “Stalking Horse Bidder”) as the successful bidder in the sale of substantially all of the Debtors’ assets (the “Sale”) [Docket No. 456]. Pursuant to the terms of a revised asset purchase agreement (the “APA”), dated January 4, 2019, which is attached to the notice, BH has agreed to pay up to $200mn in cash (subject to certain adjustments noted below). The cash price includes a payment of up to $14.45mn (the “Severance Consideration”) to Debtor Synergy Pharmaceuticals Inc. (the “Parent”) to cover employee-related severance costs.

The APA provides the following further detail as to purchase price, “In consideration for the Acquired Assets, the Purchaser shall, in addition to the assumption of the Assumed Liabilities by the Purchaser, pay the following amounts (the ‘Purchase Price’):(i) (x) one hundred eighty five million five hundred fifty thousand dollars ($185,550,000) in cash, minus (y) the Cure Costs Deduction, minus (z) the GTN Adjustment Amount(the “Cash Consideration”), net of any Deposit Funds paid to the Parent at the Closing pursuant to Section1.6(b)(i), which Cash Consideration shall be paid to the Parent on behalf of the Sellers at the Closing; and (ii)an amount in cash (the ‘Severance Consideration’) to the Parent on behalf of the Sellers equal to the lesser of (x) fourteen million four hundred fifty thousand dollars ($14,450,000) and (y) the amount of severance obligations (inclusive, for the avoidance of doubt, of any payments and benefits in respect of any notice periods under the Worker Adjustment and Retraining Notification Act (and any similar state or local Law) (all such laws collectively, the ‘WARN Acts’) and any other termination benefits), plus any employer portion of payroll taxes due in respect of such obligations and benefits.”

The following documents were attached to the APA:

  • Exhibit A: Form of Bidding Procedures Order
  • Exhibit B: Form of Bill of Sale
  • Exhibit C: Form of Assignment and Assumption Agreement
  • Exhibit D: Forms of Intellectual Property Assignment Agreements
  • Exhibit E: Form of Sale Order
  • Exhibit F: GTN Assumed Percentage Calculation
  • Exhibit G: DIP Facility Term Sheet

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