The
disclosure in Item 4 is hereby amended to include the following:
On July
6, 2008, the Company entered into an Agreement and Plan of Merger (the “Merger
Agreement”) with Fresenius SE, a
societas europaea
organized
under the laws of Germany (“Parent”), Fresenius Kabi Pharmaceuticals Holding,
LLC, a Delaware limited liability company and an indirect, wholly-owned
subsidiary of Parent (“Holdco”),
and
Fresenius Kabi Pharmaceuticals, LLC, a Delaware limited liability company
and a direct, wholly-owned subsidiary of Holdco (“Sub”). Pursuant to
and subject to the terms and conditions of the Merger Agreement, Sub will merge
with and into the Company (the “Merger”), with the Company remaining as the
surviving entity in the Merger and becoming a direct, wholly-owned subsidiary of
Holdco and an indirect, wholly-owned subsidiary of Parent. In the
Merger, each of the outstanding shares of Common Stock will be
converted into the right to receive $23.00 per share in cash and one contingent
value right newly-issued by Holdco (“CVR”). As a result of the
Merger, the current members of the Board of Directors of the Company will cease
to be directors of the Company, the existing indebtedness of the Company will be
repaid in full and the Company will incur new indebtedness in an amount to be
determined by Parent, a significant portion of which will be used to pay the
merger consideration, the Company’s certificate of incorporation will be amended
and restated to be in a form determined by Parent and the registration of the
Common Stock under Section 12 of the Securities Exchange Act of 1934 will be
terminated.
As a
condition to the willingness of Parent, Holdco and Sub to enter into the Merger
Agreement, and as an inducement and in consideration therefore, Parent, Holdco
and Sub required that the Reporting Persons and certain related entities enter
into, and the Reporting Persons and those related entities entered into, a
Written Consent and Voting Agreement with Parent, Holdco and Sub, dated as of
July 6, 2008 (the “Voting Agreement”).
Pursuant
to the Voting Agreement, the Reporting Persons and related entities executed a
written consent adopting the Merger Agreement and approving the
transactions contemplated by the Merger Agreement, including the Merger, in
respect of an aggregate of 130,110,351 shares of Common Stock, or approximately
81.1% of the outstanding shares of Common Stock.
The
disclosure in Item 5 is hereby amended and restated to read in its entirety as
follows:
(a), (b)
and (d) Dr. Soon-Shiong is the beneficial owner of, and has the sole power to
vote and dispose of, 117,948
shares of Common
Stock. Dr. Soon-Shiong is a protector of the Themba I and Themba II
trusts and is a trustee of various grantor annuity trusts (of which his family
members are beneficiaries) and, as such, he may also be deemed to be the
beneficial owner of
,
and
to share the power to vote and dispose of, an additional 129,992,403
shares of Common Stock
comprised of 38,399,338 shares of Common Stock described below as being
beneficially owned by Themba I, 38,399,338 shares of Common Stock described
below as being beneficially owned by Themba II, 36,814,379 shares of Common
Stock described below as being beneficially owned by CA Capital and Themba LLC,
13,218,114 shares of Common Stock beneficially owned by the grantor annuity
trusts, and 3,161,234 shares of Common Stock beneficially owned by RSU Plan LLC
(a limited liability company of which Themba I, Themba II, CA Capital and
another investor are members and of which Mr. Hassan is the
manager). The 117,948 shares of Common Stock that Dr. Soon-Shiong
beneficially owns and the additional 129,992,403 shares of Common Stock that Dr.
Soon-Shiong may beneficially own represent a total of 81.1% of the outstanding
shares of Common Stock.
In his
capacity as trustee of Themba I and Themba II, manager of Themba LLC (the
general partner of CA Capital), a trustee of the grantor annuity trusts and
manager of RSU Plan LLC, Mr. Hassan may be deemed to beneficially
own, and may be deemed either to share the power to vote and dispose of, or to
have the sole power to vote and dispose of, 129,992,403 shares of Common Stock
comprised of 38,399,338 shares of Common Stock described below as being
beneficially owned by Themba I, 38,399,338 shares of Common Stock described
below as being beneficially owned by Themba II, 36,814,379 shares of Common
Stock described below as being beneficially owned by CA Capital and Themba LLC,
13,218,114 shares of Common Stock beneficially owned by the grantor annuity
trusts, and 3,161,234 shares of Common Stock beneficially owned by RSU Plan
LLC. These 129,992,403 shares of Common Stock represent in the
aggregate approximately 81.0% of the outstanding shares of Common
Stock.
Themba I
may be deemed to be the beneficial owner of, and may be deemed either to share
the power to vote and dispose of, or to have the sole power to vote and dispose
of, 38,399,338 shares of Common Stock, representing approximately 23.9% of the
outstanding shares of Common Stock.
Themba II
may be deemed to be the beneficial owner of, and may be deemed either to share
the power to vote and dispose of, or to have the sole power to vote and dispose
of, 38,399,338 shares of Common Stock, representing 23.9% of the outstanding
shares of Common Stock. 3,500,000 of these shares of Common Stock are
held through Themba Credit LLC, all of the membership interests of which are
held by Themba II and of which Mr. Hassan and another person are the sole
managers.
Themba
LLC is the general partner of CA Capital, and both may be deemed to be the
beneficial owner of, and both may be deemed to share the power to vote and
dispose of, the 36,814,379 shares of Common Stock owned by CA Capital,
representing approximately 22.9% of the outstanding shares of Common
Stock.
(c)
On July 6, 2008 each
of Themba I and Themba II gifted an aggregate of 1,001,768 shares of Common
Stock to various not-for profit organizations.
(e) Not
applicable.
Item 6.
Contracts,
Arrangements, Understandings or Relationships with Respect to Securities of the
Issue
The
disclosure in Item 6 is hereby amended to include the following:
Pursuant
to the Voting Agreement, the Reporting Persons and related entities executed a
written consent adopting the Merger Agreement and approving the
transactions contemplated by the Merger Agreement, including the Merger, in
respect of an aggregate of 130,110,351 shares of Common Stock, or approximately
81.1% of the outstanding shares of Common Stock. In addition,
under the Voting Agreement the Reporting Persons agreed that, until the earlier
of the termination of the Merger Agreement or the effective time of the Merger,
they would:
•
|
vote
their shares in favor of the adoption of the Merger Agreement and against
any alternative transaction proposal;
and
|
•
|
not
to transfer any of the shares of Common Stock, subject to limited
exceptions.
|
The
Voting Agreement also prohibits the Reporting Persons from soliciting, or
engaging in any negotiations with a third party regarding, any alternative
acquisition proposals, provided that the Reporting Persons may conduct
negotiations with a third party if the Board of Directors of the Company is
permitted to engage in discussions with that third party under the Merger
Agreement. The Voting Agreement will terminate on the earlier of (i)
the effective time of the Merger, (ii) the effectiveness of any amendment,
modification or supplement to, or waiver under, the Merger Agreement which
amendment, modification, supplement or waiver would reduce the amount of merger
consideration payable in the Merger, unless consented to in writing by each
Reporting Person, and (iii) the date that the Merger Agreement is
terminated.
This
summary of the Voting Agreement does not purport to be complete and is qualified
in its entirety by reference to the terms of the Voting Agreement, which is an
Exhibit to this statement.
The last
paragraph of the disclosure in Item 6 is hereby amended and restated to read in
its entirety as follows:
PLEDGES
3,500,000
shares of Common Stock beneficially owned by Themba II and held through Themba
Credit LLC have been pledged as collateral to Merrill Lynch Bank USA for a loan
made to Themba Credit LLC pursuant to a loan and security agreement between
Themba Credit, LLC, Merrill Lynch Bank USA and Merrill, Lynch, Pierce, Fenner
& Smith Incorporated.
36,814,379
shares of Common Stock beneficially owned by CA Capital and Themba LLC have been
pledged as collateral to an affiliate of Goldman Sachs & Co. for a loan made
to CA Capital pursuant to a loan agreement between CA Capital and an affiliate
of Goldman Sachs & Co.
Item 7.
Material
to Be Filed as Exhibits
1.
|
Written
Consent and Voting Agreement, dated as of July 6, 2008, by and among
Fresenius SE, a
societas
europaea
organized under the laws of Germany (“Parent”), Fresenius
Kabi Pharmaceuticals Holding LLC, a Delaware limited liability company and
an indirect, wholly-owned subsidiary of Parent (“Holdco”),
Fresenius Kabi
Pharmaceuticals LLC, a Delaware limited liability company and a direct,
wholly-owned subsidiary of Holdco (“Sub”), and the Stockholders named
therein (incorporated by reference to Exhibit 10.1 of the Current Report
on Form 8-K filed by the Company on July 7,
2008).
|
2.
|
Joint
Filing Agreement dated July 10, 2008, by and among Dr. Soon-Shiong, Mr.
Hassan, Themba I, Themba II, CA Capital and Themba
LLC.
|