Form SC 14D9/A - Solicitation, recommendation statements: [Amend]

---

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 14D-9

(Rule 14d-101)

(Amendment No. 5)

 

SOLICITATION/RECOMMENDATION STATEMENT

UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934

 

Zynerba Pharmaceuticals, Inc.

(Name of Subject Company)

 

Zynerba Pharmaceuticals, Inc.

(Name of Persons Filing Statement)

COMMON STOCK, PAR VALUE $0.001 PER SHARE

(Title of Class of Securities)

 

98986X109

(CUSIP Number of Class of Securities)

 

Armando Anido

Zynerba Pharmaceuticals, Inc.

Chairman and Chief Executive Officer

80 W. Lancaster Avenue, Suite 300

Devon, Pennsylvania 19333

[phone]

(Name, address, and telephone numbers of person authorized to receive notices and communications

on behalf of the persons filing statement)

 

With copies to:

 

Rachael M. Bushey, Esq.

Jennifer L. Porter, Esq.

Laura K. Umbrecht, Esq.

Goodwin Procter LLP

One Commerce Square

2005 Market St., 32^nd Floor

Philadelphia, PA 19103

[phone]

☐	Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

---

---

Explanatory Note:

This Amendment No. 5 (this “Amendment”) amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended or supplemented from time to time, the “Schedule 14D-9”) previously filed by Zynerba Pharmaceuticals, Inc., a Delaware corporation (“Zynerba” or the “Company”), with the Securities and Exchange Commission (the “SEC”) on August 28, 2023, relating to the tender offer by Xylophone Acquisition Corp., a Delaware corporation (“Purchaser”), a wholly owned subsidiary of Harmony Biosciences Holdings, Inc., a Delaware corporation (“Harmony Biosciences”), to acquire all of the issued and outstanding shares of Zynerba’s common stock, par value $0.001 per share (the “Shares”) for (i) $1.1059 per Share in cash, subject to any applicable withholding of taxes and without interest, plus (ii) one contingent value right per Share, subject to any applicable withholding of taxes and without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, filed by Harmony Biosciences and Purchaser with the SEC on August 28, 2023 (as amended or supplemented from time to time, the “Offer to Purchase”), and in the related Letter of Transmittal filed by Harmony Biosciences and Purchaser with the SEC on August 28, 2023 (as amended or supplemented from time to time, the “Letter of Transmittal,” which, together with the Offer to Purchase, constitute the “Offer”).

All page references used herein refer to pages in the Schedule 14D-9 before any additions or deletions resulting from the supplemental disclosures, and capitalized terms used herein, unless otherwise defined, have the meanings set forth in the Schedule 14D-9. Underlined and bolded text shows text being added to a referenced disclosure in the Schedule 14D-9 and stricken-through text shows text being deleted from a referenced disclosure in the Schedule 14D-9. Except as specifically noted herein, the information set forth in the Schedule 14D-9, as amended by the Solicitation/Recommendation Statement (Amendment No. 1) on Schedule 14D-9 filed with the SEC on September 14, 2023, the Solicitation/Recommendation Statement (Amendment No. 2) on Schedule 14D-9 filed with the SEC on September 15, 2023, the Solicitation/Recommendation Statement (Amendment No. 3) on Schedule 14D-9 filed with the SEC on September 27, 2023 and the Solicitation/Recommendation Statement (Amendment No. 4) on Schedule 14D-9 filed with the SEC on September 29, 2023, remains unchanged. This Amendment is being filed to reflect certain updates as set forth below.

 

ITEM 2.

IDENTITY AND BACKGROUND OF FILING PERSON

Item 2 of the Schedule 14D-9 is hereby amended and supplemented as follows:

The disclosure under the heading “Tender Offer” is hereby amended and supplemented by replacing the third full paragraph beginning on page 2 of the Schedule 14D-9 in its entirety with the following:

The Offer is described in a Tender Offer Statement on Schedule TO (as amended or supplemented from time to time, and together with the exhibits thereto, the “Schedule TO”), filed by Harmony Biosciences and Purchaser with the U.S. Securities and Exchange Commission (the “SEC”) on August 28, 2023. Copies of the Offer to Purchase, and form of Letter of Transmittal and form of  Notice of Guaranteed Delivery are filed as Exhibits (a)(1)(A), and (a)(1)(B) and (a)(1)(F) hereto, respectively, and are incorporated herein by reference. The Offer to Purchase and form of Letter of Transmittal are being mailed to Zynerba’s stockholders together with this Schedule 14D-9.

The disclosure under the heading “Tender Offer” is hereby amended and supplemented by replacing the second full bullet point beginning on page 3 of the Schedule 14D-9 in its entirety with the following:

•

Each restricted stock award of the Company subject to vesting conditions based solely on continued employment or service to the Company and its subsidiary (a “Company RSA”) (x) that is outstanding immediately prior to the Effective Time and (y) of which the underlying shares of common stock of the Company are not validly tendered in the Offer, whether vested or unvested, will be cancelled and automatically converted into the right to receive for each Share subject to a Company RSA, without interest and subject to deduction for any required withholding under applicable tax law, (i) an amount in cash equal to the Closing Amount and (ii) one CVR.

 

The disclosure under the heading “Tender Offer” is hereby amended and supplemented by replacing the second full paragraph beginning on page 3 of the Schedule 14D-9 in its entirety with the following:

 

The obligation of Purchaser to purchase the Shares tendered in the Offer is subject to the satisfaction or waiver of a number of conditions set forth in Annex I to the Merger Agreement, including (i) that there will have been validly tendered (and “received” as defined in Section 251(h) of the DGCL) and not validly withdrawn prior to the expiration date of the Offer (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h)(6)(f) of the DGCL by the “depository” (as such term is defined in Section 251(h)(6)(c) of the DGCL)); (ii) that number of Shares that, considered together with all other Shares (if any) beneficially owned by Harmony Biosciences and its controlled affiliates, represent one more than 50% of the total number of Shares outstanding at the time of the expiration of the Offer (the “Minimum Condition”); and (iii) those other conditions set forth in Annex I to the Merger Agreement and further summarized in Section 15 of the Offer to Purchase (collectively, the “Offer Conditions”).

ITEM 3.

PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS

Item 3 of the Schedule 14D-9 is hereby amended and supplemented as follows:

The disclosure under the heading “Arrangements Between Zynerba and its Executive Officers, Directors and Affiliates” is hereby amended and supplemented by replacing the third full bullet point beginning on page 7 of the Schedule 14D-9 in its entirety with the following:

•

Each Company RSA (x) that is outstanding immediately prior to the Effective Time and (y) of which the underlying shares of common stock of the Company are not validly tendered in the Offer, whether vested or unvested, will be cancelled and automatically converted into the right to receive, for each Share subject to such Company RSA, without interest and subject to deduction for any required withholding under applicable tax law, (A) an amount in cash from Harmony Biosciences or the Surviving Corporation equal to the Closing Amount and (B) one CVR.

---

The disclosure under the heading “Consideration Payable for Outstanding Shares and Company Options Pursuant to the Offer or the Merger” is hereby amended and supplemented by replacing the second full paragraph beginning on page 7 of the Schedule 14D-9 in its entirety with the following:

Immediately prior to the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof, each Company Option and each Company RSA (of which the underlying shares of common stock of the Company are not validly tendered in the Offer), whether vested or unvested, that is outstanding immediately prior thereto, will be cancelled and converted into the right to receive the amount, if any, described above in the section entitled “—Effect of the Transactions on Company Equity Awards.”

ITEM 4.

THE SOLICITATION OR RECOMMENDATION

Item 4 of the Schedule 14D-9 is hereby amended and supplemented as follows:

The disclosure under the heading “Intent to Tender” is hereby amended and supplemented by replacing the third full paragraph of that section beginning on page 27 of the Schedule 14D-9 in its entirety with the following:

To Zynerba’s knowledge, after making reasonable inquiry, all of Zynerba’s executive officers and directors currently intend to tender or cause to be tendered pursuant to the Offer all of their Shares (other than unvested Company RSAs) held of record or beneficially owned by such persons immediately prior to the expiration of the Offer, as it may be extended (other than Shares for which such holder does not have discretionary authority). The foregoing does not include any Shares over which, or with respect to which, any such executive officer or director acts in a fiduciary or representative capacity or is subject to the instructions of a third party with respect to such tender.

ITEM 8.

ADDITIONAL INFORMATION

Item 8 of the Schedule 14D-9 is hereby amended and supplemented as follows:

The following new subsection shall be added immediately before the final subsection entitled “Cautionary Note Regarding Forward-Looking Statements”:

Amendment No. 1 to Merger Agreement

On October 4, 2023, Zynerba, Purchaser and Harmony Biosciences entered into Amendment No. 1 to the Merger Agreement, which is filed as Exhibit (e)(28) to this Schedule 14D-9 and is incorporated herein by reference,  in connection with changes made to the Company RSAs by the Company to permit holders of unvested Company RSAs to tender such shares of common stock of the Company underlying those unvested Company RSAs in the Offer.

The subsection of Item 8 of the Schedule 14D-9 entitled “Extension of Offer Expiration Date” is amended and supplemented by adding the following paragraph at the end of this subsection:

On October 4, 2023, Zynerba issued a press release reminding its stockholders to tender their Shares to Purchaser pursuant to the Offer before 5:00 p.m. (New York City time) on October 10, 2023. A copy of the press release is filed as Exhibit (a)(5)(N) to the Schedule 14D-9 and is incorporated herein by reference.

ITEM 9.

EXHIBITS

Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following Exhibits to the list of Exhibits:

Exhibit No.		Description
(a)(1)(F)		Form of Notice of Guaranteed Delivery (incorporated herein by reference to Exhibit (a)(1)(G) to the Schedule TO).
(e)(28)		Amendment No. 1 to Agreement and Plan of Merger, dated as of October 4, 2023, by and among Harmony Biosciences Holdings, Inc., Xylophone Acquisition Corp. and Zynerba Pharmaceuticals, Inc. (incorporated herein by reference  Exhibit (d)(5) to the Schedule TO Amendment No. 3).
(a)(5)(N)*		Press Release issued by Zynerba Pharmaceuticals, Inc., dated October 4, 2023.
*		Filed herewith.

---

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date: October 4, 2023
	Zynerba Pharmaceuticals, Inc.
	By:	/s/ Armando Anido
	Name:	​Armando Anido
	Title	​Chairman and Chief Executive Officer

 

---

---

Exhibit (a)(5)(N)

Important Information for Zynerba Pharmaceuticals Stockholders to Tender Shares for the Harmony Transaction: Process and Instructions

 

DEVON, Pa., October 4, 2023 – Zynerba Pharmaceuticals, Inc. (Nasdaq: ZYNE), the leader in innovative pharmaceutically-produced transdermal cannabinoid therapies for orphan neuropsychiatric disorders, today reminds all stockholders, including individual stockholders, to promptly tender their shares into the tender offer (the “Offer”) by Harmony Biosciences Holdings, Inc. (“Harmony”) and its wholly owned subsidiary, Xylophone Acquisition Corp. (“Purchaser”), to purchase all outstanding shares of Zynerba common stock.  The Zynerba Board of Directors unanimously recommends that Zynerba stockholders tender their shares pursuant to the Offer.

 

Key Information to Know

 

Tender Deadline:

 

•

Zynerba stockholders must tender their shares by 5:00 p.m., New York City time, on Tuesday, October 10, 2023.  Please note that if you hold shares of Zynerba common stock through a broker or other nominee, they may have a processing cutoff that is prior to the tender deadline (e.g., October 5th or 6th), so it is important that you act now if you want to tender your shares.

 

How to Tender Your Shares:

 

•

If you hold shares of Zynerba common stock through a broker, dealer, commercial bank, trust company or other nominee, you must instruct such broker or other nominee to tender your shares. Please contact your broker or other nominee promptly to allow sufficient time to tender.  Do not wait until the tender deadline to tender your shares as they may not be counted. Please note that, in some cases, your broker's or other nominee’s processing cutoff date may have changed since the Offer deadline was first announced, so take prompt action today to ensure your shares are properly tendered prior to any applicable processing cutoff.

o

Contact Information for Commonly Used Brokers:

◾

Call TD Ameritrade at 888-723-8504, option 1

◾

Call Fidelity at 800-343-3548

◾

Call E-Trade at 1-800-387-2331

◾

Contact Robinhood at https://robinhood.com/contact

1

---

•

Please include the stock symbol for the offer (ZYNE) and the number of shares you would like to tender.

◾

Call Charles Schwab at 1-800-435-4000

◾

Call Morgan Stanley at 1-888-454-3965

◾

Call JP Morgan at 1-800-935-9935

◾

Call Merrill, a Bank of America Company at 1-800-637-7455

o

If your broker is not listed above, please contact your broker’s customer service department and ask to speak with Corporate Actions. From there, you should be directed to someone who can help you.

•

Zynerba stockholders should contact MacKenzie Partners, Inc., toll free by phone at 800-322-2885 or by email to [e-mail] with any questions or to request assistance with tendering shares.

 

Why You Should Tender Your Shares:

 

•

Every share tendered by stockholders is important.

•

If less than a majority of the outstanding shares of Zynerba common stock are tendered, the Offer will not be completed and Zynerba will not be acquired by Harmony.

•

If Zynerba is not acquired by Harmony, there are significant risks associated with Zynerba’s ability to raise the required capital to continue as a standalone company and remain listed on the Nasdaq stock market.

 

If the Offer is completed, stockholders will receive an up-front purchase price of $1.1059 per share plus one non-tradeable contingent value right (“CVR”) per share representing the right to receive up to an additional approximately $2.5444 per share in cash, without interest and less any applicable tax withholding, upon the achievement of certain clinical and commercial milestones related to Zygel. If all such milestones are achieved, the total consideration payable to stockholders is up to $3.6503 per share in cash when combined with the up-front purchase price. Additional transaction details and the Company’s previous Offer reminder can be found HERE.

 

Questions About How to Tender Shares:

 

•

Please contact MacKenzie Partners, Inc., toll free by phone at 800-322-2885 or by email to [e-mail].  They will be able to walk you through the tender process and assist with any questions.

2

---

•

If you hold shares of Zynerba common stock through a broker or nominee, you should contact your broker or nominee as soon as possible to answer your questions and to allow sufficient time to tender.

Cautionary Note on Forward-Looking Statements

 

This press release contains forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. We may, in some cases, use terms such as “predicts,” “believes,” “potential,” “proposed,” “continue,” “estimates,” “anticipates,” “expects,” “plans,” “intends,” “may,” “could,” “might,” “will,” “should” or other words that convey uncertainty of future events or outcomes to identify these forward-looking statements. Such statements are subject to numerous important factors, risks and uncertainties that may cause actual events or results to differ materially from Zynerba’s current expectations. Management’s expectations and, therefore, any forward-looking statements in this press release could also be affected by risks and uncertainties relating to a number of other factors, including the following: Zynerba’s cash and cash equivalents may not be sufficient to support its operating plan for as long as anticipated; Zynerba’s expectations, projections and estimates regarding expenses, future revenue, capital requirements, incentive and other tax credit eligibility, collectability and timing, and availability of and the need for additional financing; Zynerba’s ability to obtain additional funding to support its clinical development programs; the results, cost and timing of Zynerba’s clinical development programs, including any delays to such clinical trials relating to enrollment or site initiation; clinical results for Zynerba’s product candidates may not be replicated or continue to occur in additional trials and may not otherwise support further development in a specified indication or at all; actions or advice of the U.S. Food and Drug Administration, the European Medicines Agency and other foreign regulatory agencies may affect the design, initiation, timing, continuation and/or progress of clinical trials or result in the need for additional clinical trials; Zynerba’s ability to obtain and maintain regulatory approval for its product candidates, and the labeling under any such approval; Zynerba’s reliance on third parties to assist in conducting pre-clinical and clinical trials for its product candidates; delays, interruptions or failures in the manufacture and supply of Zynerba’s product candidates and Zynerba’s ability to commercialize its product candidates; the size and growth potential of the markets for Zynerba’s product candidates, and Zynerba’s ability to service those markets; Zynerba’s ability to develop sales and marketing capabilities, whether alone or with potential future collaborators; the rate and degree of market acceptance of Zynerba’s product candidates; Zynerba’s expectations regarding its ability to obtain and adequately maintain sufficient intellectual property protection for its product candidates; the extent to which health epidemics and other outbreaks of communicable diseases, including COVID-19, could disrupt our operations or adversely affect our business and financial condition; and the extent to which inflation, banking stability or global instability, including political instability, may disrupt our business operations or our financial condition. This list is not exhaustive and these and other risks are described in Zynerba’s periodic reports, including the annual report on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, filed with or furnished to the Securities and Exchange Commission (the “SEC”) and available at www.sec.gov. Any forward-looking statements that Zynerba makes in this press release speak only as of the date of this press release. Zynerba assumes no obligation to update forward-looking statements whether as a result of new information, future events or otherwise, after the date of this press release.

 

3

---

Additional Information about the Acquisition and Where to Find It

 

This document is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell shares of Zynerba, nor is it a substitute for the tender offer materials that Harmony and Purchaser filed with the SEC upon commencement of the tender offer. Harmony and Purchaser initially filed tender offer materials on Schedule TO on August 28, 2023, and Zynerba initially filed a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC with respect to the tender offer on August 28, 2023. Holders of shares of Zynerba common stock are urged to read the tender offer materials (including an Offer to Purchase, a related Letter of Transmittal and certain other tender offer documents) and the Solicitation/Recommendation Statement (as each may be amended or supplemented from time to time) because they contain important information that holders of shares of Zynerba common stock should consider before making any decision regarding tendering their shares. The Offer to Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, have been available to all holders of shares of Zynerba at no expense to them. The tender offer materials and the Solicitation/Recommendation Statement are available for free at the SEC’s website at www.sec.gov. In addition, these materials are available at no charge on the Enhanced SEC Filings section of the Investor Relations page of Zynerba’s website at https://www.zynerba.com/ and by directing a request to the information agent for the tender offer, MacKenzie Partners, Inc., who can be reached toll free by phone at 800-322-2885 or by email to [e-mail].

 

Zynerba Contacts

 

Peter Vozzo

ICR Westwicke

Office: 443.213.0505

Cell: 443.377.4767

[e-mail]

4

---

---