- Amended tender offer statement by Third Party (SC TO-T/A)
14 Oktober 2009 - 12:04PM
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. 3)
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
|
Filing
Party:
|
Aptiom, Inc.
and Dainippon Sumitomo Pharma Co., Ltd.
|
|
Form or
Registration No.:
|
Schedule
TO
|
Date
Filed:
|
September 15,
2009
|
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. 3 (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 and Amendment No. 2 filed on October 2, 2009 (as so amended and
supplemented, the
Schedule TO
)
filed 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 11. ADDITIONAL INFORMATION
Item
11 of the Schedule TO is hereby amended and supplemented as follows:
The initial period of the Offer expired at 12:00
Midnight, New York City time, on Tuesday, October 13, 2009. According to the Depositary, as of the
expiration of the initial offering period, a total of approximately 86,913,744 Shares were validly
tendered and not properly withdrawn in the Offer (excluding Shares tendered
through notices of guaranteed delivery), which represent approximately
78.2
% of all issued and outstanding shares of
Sepracor common stock. 13,881,625 additional
Shares were tendered through notices of guaranteed delivery. Offeror has accepted for payment all Shares
that were validly tendered and not properly withdrawn in the Offer, and payment
for such Shares will be made promptly, in accordance with the terms of the
Offer.
On October 14,
2009, DSP and Sepracor issued a joint press release and DSP issued an
additional press release in Japan announcing the results of the Offer and that
Offeror has commenced a Subsequent Offering Period for all remaining untendered
Shares expiring at 5:00 p.m., New York City time, on Monday, October 19,
2009. During the Subsequent Offering
Period, holders of Shares who did not previously tender their Shares in the
Offer may do so and will promptly receive the same $23.00 per Share cash
consideration paid during the initial offering period. Offeror will immediately accept for payment
all Shares validly tendered during this Subsequent Offering Period, and payment
will be made promptly after acceptance, in accordance with the terms of the
Offer. The procedures for accepting the
Offer and tendering Shares during the Subsequent Offering Period are the same
as those described for the Offer in the Offer to Purchase, except that (i) guaranteed
delivery procedures may not be used during the Subsequent Offering Period and (ii) Shares
tendered during the Subsequent Offering Period may not be withdrawn.
The full texts of
the joint press release issued by DSP and Sepracor and the additional press
release issued in Japan by DSP announcing, among other things, the Subsequent
Offering Period are filed as Exhibit (a)(5)(C) and Exhibit (a)(5)(D),
respectively, hereto and are incorporated herein by reference.
ITEM 12. EXHIBITS
Item
12 of the Schedule TO is hereby amended and supplemented by adding the
following exhibit:
(a)(5)(C)
Joint Press Release, dated October 14, 2009, issued by DSP and Sepracor.
(a)(5)(D)
Additional Press Release, dated October 14, 2009, issued by DSP.
2
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 14,
2009
|
APTIOM, INC.
|
|
|
|
|
|
|
By:
|
/s/
Nobuhiko Tamura
|
|
|
Name: Nobuhiko Tamura
|
|
|
Title: President
|
|
|
|
|
|
|
Dated: October 14,
2009
|
DAINIPPON SUMITOMO
PHARMA CO., LTD.
|
|
|
|
|
|
|
|
By:
|
/s/ Yutaka Takeuchi
|
|
|
Name: Yutaka Takeuchi
|
|
|
Title: Member, Board of
Directors,
and Executive Officer
|
3
EXHIBIT INDEX
Exhibit
Number
|
|
Document
|
|
|
|
(a)(1)(A)*
|
|
Offer to Purchase,
dated September 15, 2009.
|
|
|
|
(a)(1)(B)*
|
|
Form of Letter of
Transmittal.
|
|
|
|
(a)(1)(C)*
|
|
Form of Notice of
Guaranteed Delivery.
|
|
|
|
(a)(1)(D)*
|
|
Form of Letter to
Brokers, Dealers, Commercial Banks, Trust Companies and other Nominees.
|
|
|
|
(a)(1)(E)*
|
|
Form of Letter to
Clients for Use by Brokers, Dealers, Banks, Trust Companies and other
Nominees.
|
|
|
|
(a)(1)(F)*
|
|
Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9.
|
|
|
|
(a)(1)(G)*
|
|
Form of Summary
Advertisement as published in
The Wall
Street Journal
on September 15, 2009.
|
|
|
|
(a)(5)(A)*
|
|
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).
|
|
|
|
(a)(5)(B)*
|
|
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).
|
|
|
|
(a)(5)(C)**
|
|
Joint Press Release,
dated October 14, 2009, issued by DSP and Sepracor.
|
|
|
|
(a)(5)(D)**
|
|
Additional Press
Release, dated October 14, 2009, issued by DSP.
|
|
|
|
(b)(1)*
|
|
Debt Commitment Letter
between Sumitomo Mitsui Banking Corporation and DSP, dated August 31,
2009.
|
|
|
|
(c)
|
|
Not applicable.
|
|
|
|
(d)(1)*
|
|
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).
|
|
|
|
(d)(2)*
|
|
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).
|
|
|
|
(d)(3)*
|
|
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).
|
|
|
|
(e)
|
|
Not applicable.
|
|
|
|
(f)
|
|
Not applicable.
|
|
|
|
(g)
|
|
Not applicable.
|
|
|
|
(h)
|
|
Not applicable.
|
*
Previously filed.
** Filed herewith.
4
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