- Amended tender offer statement by Third Party (SC TO-T/A)
02 Oktober 2009 - 11:30PM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
TO/A
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR SECTION 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 2)
SEPRACOR INC.
(Name of Subject Company)
APTIOM, INC.
DAINIPPON
SUMITOMO PHARMA CO., LTD.
(Names of Filing Persons
(Offerors))
COMMON STOCK, PAR VALUE $0.10 PER SHARE
(INCLUDING ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(Title of Class of
Securities)
817315104
(CUSIP Number of Class of
Securities)
Noriaki Okuda
Director, Legal Affairs
Dainippon Sumitomo Pharma Co., Ltd.
6-8, Doshomachi 2-Chome, Chuo-Ku, Osaka, 541-0045, Japan
Tel: +81-6-6203-4690
Fax: +81-6-6203-2129
(Name, Address and Telephone
Number of Person Authorized
to Receive Notices and
Communications on Behalf of Filing Persons)
Copies to:
Toby S. Myerson, Esq.
Ariel J. Deckelbaum, Esq.
1285 Avenue of the Americas
New York, NY 10019-6064
United States
Phone 212-373-3000
Fax 212-757-3990
CALCULATION OF FILING FEE
Transaction Valuation*
|
|
Amount of Filing Fee**
|
$2,580,590,247
|
|
$143,996.94
|
*
Estimated for
purposes of calculating the filing fee only. This amount is based on the offer
to purchase at a purchase price of $23.00 cash per share (i) all
110,992,118 outstanding shares of common stock of Sepracor; (ii) all
restricted stock units with respect to 58,711 shares of common stock of
Sepracor; and (iii) all outstanding options with an exercise price equal
to or less than $23.00 with respect to 4,376,328 shares of common stock of
Sepracor net of the weighted average exercise price of $16.96 per share option,
in each case as of August 31, 2009, the most recent practicable date.
**
The amount of
the filing fee is calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended, by multiplying the transaction
valuation by 0.00005580.
x
Check box if
any part of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously paid. Identify
the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid:
|
|
$143,996.94
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Filing Party:
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Aptiom, Inc. and Dainippon Sumitomo Pharma Co., Ltd.
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Form or Registration No.:
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Schedule TO
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Date Filed:
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September 15, 2009
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o
Check the box
if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
Check the appropriate boxes below to
designate any transactions to which the statement relates:
x
third-party
tender offer subject to Rule 14d-1.
o
issuer tender
offer subject to Rule 13e-4.
o
going-private
transaction subject to Rule 13e-3.
o
amendment to
Schedule 13D under Rule 13d-2.
Check the following box if the filing is a
final amendment reporting the results of the tender offer.
o
This Amendment No. 2
(this
Amendment
) amends and supplements the Tender
Offer Statement on Schedule TO filed on September 15, 2009, as
amended and supplemented by Amendment No. 1 filed on September 24,
2009 (as so amended and supplemented, the
Schedule TO
)
by Aptiom, Inc. (
Offeror
),
a Delaware corporation and an indirect wholly-owned subsidiary of Dainippon
Sumitomo Pharma Co., Ltd. (
DSP
),
a corporation organized under the laws of Japan, to purchase all of the outstanding
shares of common stock, par value $0.10 per share (together with the associated
preferred stock purchase rights, each a
Share
and collectively, the
Shares
),
of Sepracor Inc., a Delaware corporation (
Sepracor
), at a purchase price of $23.00 per Share, net to
the seller in cash, without interest thereon and less any applicable
withholding taxes, upon the terms and subject to the conditions set forth in
the Offer to Purchase dated September 15, 2009 (the
Offer to Purchase
) and the related Letter
of Transmittal (the
Letter of Transmittal
which, together with the Offer to Purchase, as each may be amended and
supplemented from time to time, constitute the
Offer
). The Schedule TO was filed on behalf of Offeror
and DSP. Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Offer to Purchase.
The information in the Offer
to Purchase and the Letter of Transmittal is incorporated into this Amendment
by reference to all of the applicable items in the Schedule TO, except that
such information is hereby amended and supplemented to the extent provided
herein.
ITEM 4. TERMS OF THE TRANSACTION
Item 4 of the Schedule TO is
hereby amended and supplemented as follows:
The third paragraph in Section 15 Conditions
of the Offer is amended to add the following sentence at the end thereof:
In determining whether or
not the condition set forth in sub-paragraph (c) of the paragraph immediately
above has been satisfied, Aptiom and Offeror intend to act in a manner
consistent with the terms of the Merger Agreement and the applicable laws of
the State of Delaware, which govern the Merger Agreement. Delaware courts have determined that, when
exercising their contractual rights, parties to an agreement, such as the
Merger Agreement, are subject to an implied covenant of good faith and fair
dealing.
ITEM 11. ADDITIONAL INFORMATION
Item 11 of the Schedule TO
is hereby amended and supplemented as follows:
The disclosure under the heading entitled Sepracor
Projections in Section 8 Certain Information Concerning Sepracor of the
Offer to Purchase is hereby amended and supplemented by amending and restating
the third sentence of the first paragraph thereunder in its entirety as
follows:
In connection with DSPs
due diligence review and the execution of the Merger Agreement, DSP and Offeror
did not review any probability- or risk-adjusted projections prepared by
Sepracor.
The disclosure under the heading entitled Legal
Proceedings in Section 16 Certain Legal Matters; Regulatory Approvals
of the Offer to Purchase is hereby amended and supplemented by adding the
following paragraphs below the second paragraph thereof:
On September 23, 2009,
another action purporting to be brought on behalf of a class of stockholders of
Sepracor, captioned
John Perrotta v. Sepracor, Inc.,
et al.
, No. 1:09-cv-11585 (filed September 23, 2009), was
filed in Massachusetts Federal District Court alleging that the members of the
Sepracor Board breached their fiduciary duties to Sepracors stockholders by,
among other things, failing to take steps to maximize shareholder value and
taking steps to avoid competitive bidding in connection with the Offer and that
Sepracor, DSP and Offeror aided and abetted the purported breaches of fiduciary
duties. The complaint further alleges
that Sepracor violated the Exchange Act by omitting and misrepresenting facts
in Sepracors Schedule 14D-9. The
plaintiffs in this action request, among other things, to enjoin the Offer and
Merger until Sepracor adopts or implements a procedure or process to obtain the
highest possible price for the shareholders.
On September 25, 2009,
the Massachusetts Superior Court granted Defendants Motion to Stay the
Giaquinto Action pending the outcome of the Delaware litigation.
On October 2, 2009,
parties to the consolidated Delaware Chancery Court action executed a
Memorandum of Understanding (MOU), pursuant to which,
inter alia
,
Sepracor would make additional public disclosures (which are incorporated into
Amendment No. 2 to the Schedule 14D-9 filed by Sepracor on October 2,
2009), and all claims in the consolidated Delaware Chancery Court action would
be dismissed in accordance with the terms of the MOU. The settlement of the
consolidated Delaware Chancery Court action is subject to negotiation of
definitive settlement documentation and approval by the Delaware Court of
Chancery and is conditioned upon consummation of the Merger.
2
[Remaining of the page is
intentionally left blank]
3
SIGNATURES
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.
Dated: October 2, 2009
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APTIOM, INC.
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By:
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/s/ Nobuhiko Tamura
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Name:
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Nobuhiko Tamura
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Title:
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President
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Dated: October 2, 2009
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DAINIPPON SUMITOMO PHARMA CO., LTD.
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By:
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/s/ Yutaka Takeuchi
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Name:
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Yutaka Takeuchi
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Title:
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Member, Board of Directors, and Executive Officer
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4
EXHIBIT INDEX
Exhibit
Number
|
|
Document
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(a)(1)(A)*
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|
Offer to Purchase, dated September 15, 2009.
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(a)(1)(B)*
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Form of Letter of Transmittal.
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(a)(1)(C)*
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Form of Notice of Guaranteed Delivery.
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(a)(1)(D)*
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Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees.
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(a)(1)(E)*
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Form of Letter to Clients for Use by Brokers, Dealers, Banks,
Trust Companies and other Nominees.
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(a)(1)(F)*
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Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
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(a)(1)(G)*
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Form of Summary Advertisement as published in
The Wall Street Journal
on
September 15, 2009.
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(a)(5)(A)*
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Joint Press Release, dated September 3, 2009, issued by DSP and
Sepracor (incorporated by reference to the Schedule TO-C filed by
Offeror and DSP with the SEC on September 3, 2009).
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(a)(5)(B)*
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Additional Press Release, dated September 3, 2009, issued by DSP
(incorporated by reference to the Schedule TO-C filed by Offeror and DSP
with the SEC on September 3, 2009).
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(b)(1)*
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Debt Commitment Letter between Sumitomo Mitsui Banking Corporation
and DSP, dated August 31, 2009.
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(c)
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Not applicable.
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(d)(1)*
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Agreement and Plan of Merger, dated as of September 3, 2009,
among DSP, Offeror and Sepracor (incorporated by reference to
Exhibit 2.1 to Sepracors Current Report on Form 8-K, File
No. 000-19410, filed with the SEC on September 3, 2009).
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(d)(2)*
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Confidentiality Agreement, dated June 13, 2009, between Sepracor
and DSP (incorporated by reference to Exhibit (e)(3) to
Schedule 14D-9 filed by Sepracor with the SEC on September 15,
2009).
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(d)(3)*
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Exclusivity Agreement, dated as of August 17, 2009 (incorporated
by reference to Exhibit (e)(4) to the Schedule 14D-9 filed by
Sepracor with the SEC on September 15, 2009).
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(e)
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Not applicable.
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(f)
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Not applicable.
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(g)
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Not applicable.
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(h)
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Not applicable.
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* Previously filed.
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