Item 1.01 Entry into a Material Definitive Agreement.
On March 1, 2020, Forty Seven, Inc., a Delaware corporation (the Company or Forty
Seven), entered into an Agreement and Plan of Merger (the Merger Agreement), by and among the Company, Gilead Sciences, Inc., a Delaware corporation (Parent or
Gilead), and Toro Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (Purchaser).
Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, Parent has agreed to cause Purchaser to commence a
tender offer (the Offer) to purchase all of the outstanding shares of common stock of the Company (the Shares), par value $0.0001 per share, other than any Shares held immediately prior to the
effective time of the Merger (as defined below) by the Company (or held in the Companys treasury) and any Shares held immediately prior to the effective time of the Merger by Parent, Purchaser or any other direct or indirect wholly owned
subsidiary of Parent, at a price of $95.50 per Share (the Offer Price), net to the seller in cash, without interest and subject to any required withholding of taxes.
The Offer will initially remain open for 20 business days from the date of commencement of the Offer. If at the scheduled expiration time of
the Offer any of the conditions to the Offer have not been satisfied (unless such condition is waivable by Purchaser or Parent and has been waived), Parent will cause Purchaser to, extend the Offer to permit the satisfaction of all Offer conditions.
The obligation of Purchaser to accept for payment, and pay for, Shares validly tendered (and not validly withdrawn) pursuant to the Offer
is subject to satisfaction or waiver, to the extent permitted under applicable legal requirements, of customary conditions, including (i) there being validly tendered and not validly withdrawn Shares that, considered together with all other
Shares (if any) beneficially owned by Parent and its affiliates, represent one more Share than 50% of the sum of (x) the total number of Shares outstanding at the expiration of the Offer, plus (y) the total number of Shares the Company
would be required to issue upon conversion, settlement, exchange or exercise of all options, warrants, rights or securities vested and outstanding at the expiration of the Offer that are convertible, exchangeable or exercisable into Shares (whether
then outstanding or for which the conversion, settlement, exchange or exercise date has already occurred, but in any event without duplication), (ii) the expiration or termination of the waiting period (or any extension thereof) applicable to the
Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), (iii) the absence of any law or order in any jurisdiction in which Parent or the Company has material business operations
prohibiting the consummation of the Offer or the Merger, (iv) the accuracy of the Companys representations and warranties (subject to customary materiality qualifiers), (v) the Companys compliance or performance in all material
respects of its obligations, covenants and agreements it is required to comply with or perform at or prior to the expiration of the Offer, and (vi) the absence, since the date of the Merger Agreement, of any change, circumstance, condition,
development, effect, event, occurrence or state of facts which, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect (as defined in the Merger Agreement) that is continuing.
Following the consummation of the Offer and subject to the terms and conditions of the Merger Agreement, Purchaser will be merged with and
into the Company (the Merger) pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the DGCL), with the Company continuing as the surviving corporation in the
Merger. At the effective time of the Merger, each Share, including any Shares subject to vesting or employment based forfeiture conditions (Restricted Shares) (other than (i) Shares held by the Company (or held in the
Companys treasury), (ii) Shares held by Parent, Purchaser, or any other direct or indirect wholly owned subsidiary of Parent and (iii) Shares held by stockholders who have properly exercised and perfected their demands for appraisal of
such Shares in accordance with the DGCL and have neither withdrawn nor lost such rights prior to the effective time of the Merger) will be converted into the right to receive an amount in cash equal to the Offer Price, without interest, without
regard to any vesting or employment based forfeiture conditions which were applicable to the corresponding Restricted Shares, and subject to any required withholding of taxes.
The Merger Agreement includes customary representations, warranties and covenants of the Company, Parent and Purchaser.
The Company has agreed to customary no-shop restrictions on its ability to solicit
alternative acquisition proposals from third parties and engage in discussions or negotiations with third parties regarding alternative acquisition proposals. Notwithstanding these restrictions, the Company may under certain circumstances provide,
pursuant to an acceptable confidentiality agreement, information (including non-public information) to and engage in or otherwise participate in discussions or negotiations with third parties with respect to a
bona fide written alternative acquisition proposal that the board of directors of the Company has determined in good faith, after consultation with its financial advisor and outside legal counsel, constitutes or would reasonably be expected to
result in a Superior Offer (as defined in the Merger Agreement) and that failure to take such action would be inconsistent with the boards fiduciary duties under applicable legal requirements. The Merger Agreement also requires that the
Companys board of directors recommend that the stockholders of the Company accept the Offer and tender their Shares to Purchaser pursuant to the Offer and not, among other things, (i) withdraw or withhold (or modify or qualify in a manner
adverse to Parent or Purchaser), or publicly propose to withdraw or withhold (or modify or qualify in a