8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 17, 2019 (December 17, 2019)

ArQule, Inc.

(Exact name of registrant as specified in its charter)

Delaware	000-21429	04-3221586
(State or other Jurisdiction of Incorporation)	(Commission File No.)	(I.R.S. Employer Identification No.)

One Wall Street

Burlington, Massachusetts 01803

(Address of principal executive offices, including Zip Code)

(781) 994-0300

(Registrant’s telephone number, including area code)

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, par value $0.01 per share	ARQL	The Nasdaq Stock Market LLC (Nasdaq Global Market)

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

Item 1.01     Entry into a Material Definitive Agreement.

Amendment No. 1 to the Agreement and Plan of Merger

On December 17, 2019, ArQule, Inc., a Delaware corporation (“ArQule”), Merck Sharp & Dohme Corp., a New Jersey corporation (“Merck”), and Argon Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Merck (“Merger Sub”), entered into the First Amendment (the “Merger Agreement Amendment”) to the Agreement and Plan of Merger, dated as of December 6, 2019, among ArQule, Merck and Merger Sub (the “Merger Agreement”). The Merger Agreement Amendment corrects certain scrivener’s errors contained in Annex I to the Merger Agreement regarding the conditions to consummation of the tender offer contemplated by the Merger Agreement. Specifically, the Merger Agreement Amendment (i) limits the conditions that cannot be waived by Merck and Merger Sub without ArQule’s consent and that would, if such conditions are not satisfied and other conditions have been satisfied or waived, require extension of the outside date in accordance with the Merger Agreement, to the conditions concerning antitrust approvals and the absence of judgments, laws or orders preventing the transactions contemplated by the Merger Agreement, and (ii) specifies that the conditions concerning antitrust approvals and the absence of judgments, laws or orders preventing the transactions contemplated by the Merger Agreement are limited to the requirements and actions of jurisdictions in which Merck or any of its affiliates operate their respective businesses or own any assets. Other than as expressly modified pursuant to the Merger Agreement Amendment, the Merger Agreement remains in full force and effect as originally executed on December 6, 2019.

Additional Information

The foregoing description of the Merger Agreement Amendment is not complete and is qualified in its entirety by reference to the Merger Agreement Amendment, which is attached as Exhibit 2.1 to this report and incorporated herein by reference. The Merger Agreement Amendment and the foregoing description have been included to provide investors and stockholders with information regarding the terms of the Merger Agreement Amendment. They are not intended to provide any other factual information about ArQule.

Notice to Investors and Security Holders

The offer contemplated by the Merger Agreement and Merger Agreement Amendment (the “Offer”) referred to in this Current Report on Form 8-K (the “Current Report”) has not yet commenced. The description contained in this Current Report is neither an offer to purchase nor a solicitation of an offer to sell any securities, nor is it a substitute for the tender offer materials that Merck and Merger Sub will file with the SEC. The solicitation and offer to buy Shares will only be made pursuant to an offer to purchase and related tender offer materials. At the time the Offer is commenced, Merck and Merger Sub will file a tender offer statement on Schedule TO and thereafter ArQule will file a solicitation/recommendation statement on Schedule 14D-9 with the SEC with respect to the Offer. THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WILL CONTAIN IMPORTANT INFORMATION. ANY HOLDERS OF SHARES ARE URGED TO READ THESE DOCUMENTS CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT HOLDERS SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES. The offer to purchase, the related letter of transmittal and the solicitation/recommendation statement will be made available for free at the SEC’s website at www.sec.gov. Additional copies may be obtained for free by contacting ArQule or Merck. Copies of the documents filed with the SEC by ArQule will be available free of charge on ArQule’s internet website at http://investors.arqule.com/financial-information/sec-filings or by contacting ArQule’s investor relations contact at +1 (781) 994-0300. Copies of the documents filed with the SEC by Merck can be obtained, when filed, free of charge by directing a request to the Information Agent for the Offer which will be named in the Schedule TO.

In addition to the offer to purchase, the related letter of transmittal and certain other tender offer documents filed by Merck, as well as the solicitation/recommendation statement filed by ArQule, ArQule will also file annual, quarterly and current reports with the SEC. You may read and copy any reports or other information filed by ArQule or Merck at the SEC public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. ArQule’s filings with the SEC are also available to the public from commercial document-retrieval services and at the website maintained by the SEC at http://www.sec.gov.

Forward Looking Statements

The information contained in this Current Report is as of December 17, 2019. ArQule assumes no obligation to update forward-looking statements contained in this Current Report as the result of new information or future events or developments.

This Current Report contains forward-looking information related to Merck, ArQule and the proposed acquisition of ArQule by Merck that involves substantial risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements. Forward-looking statements in this document and the accompanying exhibits include, among other things, the ability of ArQule and Merck to complete the transactions contemplated by the Merger Agreement, including the parties’ ability to satisfy the conditions to the consummation of the offer contemplated thereby and the other conditions set forth in the Merger Agreement; statements about the expected timetable for completing the transaction; ArQule’s and Merck’s beliefs and expectations and statements about the benefits being sought to be achieved in Merck’s proposed acquisition of ArQule; the potential effects of the acquisition on both ArQule and Merck; the possibility of any termination of the Merger Agreement, as well as the expected benefits and success of ArQule’s product candidates. These statements are based upon the current beliefs and expectations of the ArQule’s and Merck’s management and are subject to significant risks and uncertainties. There can be no guarantees that the conditions to the closing of the proposed transaction will be satisfied on the expected timetable or at all, with respect to pipeline products that the products will receive the necessary regulatory approvals or that they will prove to be commercially successful. If underlying assumptions prove inaccurate or risks or uncertainties materialize, actual results may differ materially from those set forth in the forward-looking statements.

Risks and uncertainties include but are not limited to, uncertainties as to the timing of the offer and the subsequent merger; uncertainties as to how many of ArQule’s stockholders will tender their shares in the offer; the risk that competing offers or acquisition proposals will be made; the possibility that various conditions to the consummation of the merger and the offer contemplated thereby may not be satisfied or waived; the effects of disruption from the transactions contemplated by the Merger Agreement and the impact of the announcement and pendency of the transactions on ArQule’s business; the risk that stockholder litigation in connection with the offer or the merger may result in significant costs of defense, indemnification and liability; general industry conditions and competition; general economic factors, including interest rate and currency exchange rate fluctuations; challenges inherent in new product development, including obtaining regulatory approval; and the company’s ability to accurately predict future market conditions.

A further description of risks and uncertainties relating to ArQule can be found in ArQule’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, and in its subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, all of which are filed with the SEC and available at www.sec.gov and https://www.arqule.com/.

Item 9.01     Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number	Description
2.1	First Amendment to Agreement and Plan of Merger, dated December 17, 2019, among ArQule, Inc., Merck Sharp & Dohme Corp. and Argon Merger Sub, Inc.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

ArQule, Inc.
By:	/s/ Peter S. Lawrence
	President and Chief Operating Officer

Dated: December 17, 2019

EX-2.1

Exhibit 2.1

FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER

This First Amendment (this “Amendment”) is made and entered into as of December 17, 2019, by and among Merck Sharp & Dohme Corp., a New Jersey corporation (“Parent”), Argon Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and ArQule, Inc., a Delaware corporation (the “Company” and, together with Parent and Merger Sub, the “Parties”), and amends the Agreement and Plan of Merger, dated as of December 6, 2019 (the “Agreement”), by and among the Parties. Capitalized terms not otherwise defined in this Amendment shall have the respective meanings set forth in the Agreement.

WHEREAS, the respective boards of directors of the Parties have previously approved the transactions contemplated by the Agreement and wish to amend the Agreement to correct scrivener’s errors in Annex I to the Agreement; and

WHEREAS, the Parties are entering into this Amendment to amend the Agreement as set forth herein pursuant to Section 10.2(a) of the Agreement.

NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements contained in this Amendment, the Parties agree as follows:

1.        Amendments to Annex I to the Agreement. Clause (b) and Clauses (c)(i) and (c)(ii) of Annex I to the Agreement are hereby amended by adding the bold underlined text as follows:

“(b) any waiting period (and any extension thereof) applicable to the consummation of the Offer and the Merger under the HSR Act shall not have been terminated or shall not have expired, or any other clearance, approval or consent under any other applicable Antitrust Law of any Specified Governmental Authority shall not have been obtained;

(c) any of the following events, conditions, circumstances, state of facts or developments shall exist or has occurred and be continuing:

(i) any Judgment preventing the consummation of the Offer or the Merger shall have been issued by any Specified Governmental Authority of competent jurisdiction and remain in effect, or there shall be any Law enacted or deemed applicable to the Offer or the Merger by a Specified Governmental Authority that makes consummation of the Offer or the Merger illegal;

(ii) there shall be instituted, pending or threatened in writing any Proceeding by any Specified Governmental Authority seeking (1) any Non-Required Remedy or (2) to enjoin, make illegal or otherwise prohibit the consummation of the Offer Closing or the Merger (the conditions set forth in clause (b), clause (c)(i) and this clause (c)(ii), the “Antitrust and Judgment/Illegality Conditions”);”

2.       Effectiveness. This Amendment shall be effective as of the date first written above following the execution of this Amendment by the Parties. Any reference in the Agreement to “this Agreement” shall hereafter be deemed to refer to the Agreement as amended by this Amendment, and any reference in the Company Disclosure Letter to “the Agreement” shall refer to the Agreement as amended by this Amendment, except that all references in the Agreement or the Company Disclosure Letter to “the date hereof” and “the date of this Agreement” shall refer to December 6, 2019.

3.       Counterparts. This Amendment may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Amendment (in counterparts or otherwise) by email (in .pdf or .tiff format) shall be sufficient to bind the Parties to the terms and conditions of this Amendment.

4.       Miscellaneous Terms. The provisions of Article 10 of the Agreement shall apply mutatis mutandis to this Amendment.

5.       Full Force and Effect. Except as specifically amended herein, the Parties hereby acknowledge and agree that all of the terms and provisions set forth in the Agreement remain in full force and effect in all respects.

2

IN WITNESS WHEREOF, the Company, Parent, and Merger Sub have caused this Amendment to be executed as of the date first written above.

ArQule, Inc.
By:	/s/ Paolo Pucci
Name:	Paolo Pucci
Title:	CEO
Merck Sharp & Dohme Corp.
By:	/s/ Sunil Patel
Name:	Sunil Patel
Title:	Senior Vice President
Argon Merger Sub, Inc.
By:	/s/ Faye C. Brown
Name:	Faye C. Brown
Title:	Assistant Secretary

[Signature Page to First Amendment to Merger Agreement]