- Amended Statement of Ownership: Solicitation (SC 14D9/A)
November 09 2010 - 6:04AM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 8)
GENZYME CORPORATION
(Name of Subject Company)
GENZYME CORPORATION
(Name of Person(s) Filing Statement)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
372917104
(CUSIP Number of Common Stock)
Peter Wirth
Executive Vice President
Genzyme Corporation
500 Kendall Street
Cambridge, Massachusetts 02142
(617) 252-7500
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing Statement)
With copies to:
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Paul M. Kinsella
Ropes & Gray LLP
Prudential Tower
800 Boylston Street
Boston, Massachusetts 02199
(617) 951-7000
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Andrew R. Brownstein
Wachtell, Lipton, Rosen & Katz
51 West 52nd St
New York, New York 10019
(212) 403-1000
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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TABLE OF CONTENTS
This Amendment No. 8 amends and supplements the Solicitation/Recommendation Statement on Schedule
14D-9 originally filed by Genzyme Corporation, a Massachusetts corporation (the
Company
or
Genzyme
), with the Securities and Exchange Commission (the
SEC
) on October 7, 2010 (as
previously amended, the
Schedule 14D-9
), relating to the unsolicited tender offer by GC Merger
Corp., a Massachusetts corporation (
Offeror
) and wholly-owned subsidiary of Sanofi-Aventis, a
French
société anonyme
(
Sanofi
), to purchase all of the outstanding shares of the Companys
common stock, par value $.01 per share (the
Shares
), at a purchase price of $69.00 per Share (the
Offer Price
), net to the selling shareholders in cash, without interest thereon and less any
required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated October 4, 2010 (the
Offer to Purchase
), and in the related Letter of Transmittal
(which, together with the Offer to Purchase, constitutes the
Offer
), included as
Exhibits
(a)(1)(A)
and
(a)(1)(B)
to the Tender Offer Statement on Schedule TO (as amended or supplemented
from time to time, the
Schedule TO
) filed by Sanofi and Offeror with the SEC on October 4, 2010.
Item 4. The Solicitation or Recommendation.
Item 4 of the Schedule 14D-9 is hereby amended and supplemented by adding the following after the
paragraph starting On October 5, 2010, the Strategic Planning Committee. . . under the heading
(b) Background and Reasons for the Recommendation of the Company Board:
On October 22, 2010, the Company held a meeting with investors and security analysts in
New York to present the Companys near-term financial outlook, report progress on the Companys
actions to enhance shareholder value, communicate expectations for the Companys late-stage
pipeline, and outline the reasons why the Offer dramatically undervalues the Company. A copy of
the Companys presentation, a copy of the Companys press release announcing the key points
presented at the meeting and a transcript of the Companys presentation were filed as Exhibits
(a)(21), (a)(22) and (a)(23), respectively, to this Schedule 14D-9. The Company subsequently met
directly with several of the Companys shareholders in the following days.
On November 8, 2010, Mr. Termeer received the following letter from Mr. Viehbacher and was
asked to share it with the members of the Company Board:
November 8, 2010
VIA EMAIL, TELECOPIER AND DHL
Mr. Henri Termeer
Chairman, President and Chief Executive Officer
Genzyme Corporation
500 Kendall Street
Cambridge, Massachusetts 02147
USA
Dear Henri,
Now that Genzymes third-quarter earnings have been released, you have had the opportunity to
speak to shareholders regarding Genzymes business and prospects (including the detailed
presentation to analysts and investors on October 22) and the market has had a chance to
digest and react to all of this information, we would again like to request that you meet with
us to discuss our proposal to acquire Genzyme. We continue to believe that our proposal is
compelling for your shareholders and would provide them with immediate and substantial value
that reflects the potential of Genzymes business and pipeline.
You have publicly disclosed that Genzymes Board has authorized management and the companys
advisors to probe and evaluate alternatives for Genzyme and its assets, including contacting
third parties. We were encouraged to hear this, but to date, we have not been contacted or
included in this process. We are prepared to meet with you and, if you prefer, with your
advisors, at any time to discuss our respective views as to the appropriate value of Genzymes
business and prospects and how to move this transaction process forward in a cooperative
manner. As you will recall, at our meeting in September, I proposed several pathways to
advance our discussions, such as providing us with some limited due diligence regarding
manufacturing or arranging a meeting with your commercial team to discuss the prospects for
alemtuzumab. We remain ready and willing to participate in any such meetings.
You have expressed publicly (and, we understand, directly during your conversations with
Genzyme shareholders) that you are committed to maximizing shareholder returns and that you
value shareholders voices. However, we note certain comments in your Schedule 14D-9 that
appear to be inconsistent with that objective.
First, you indicated that you believe that the Genzyme Board can, at any time, opt to
immediately stagger the terms of its members, extending the terms of two-thirds of Genzymes
current directors for an additional one to three years. This action would deprive shareholders
of the opportunity to elect the full Genzyme Board at the 2011 annual meeting of shareholders,
a right they expressly demanded. As you know, in 2006, holders of more than 85% of the
outstanding shares of Genzyme common stock voted to approve an amendment to Genzymes Articles
of Organization to provide that all directors would be elected annually. Given this, we do not
believe that it would be appropriate for the Genzyme Board to disenfranchise shareholders by
unilaterally staggering the terms of directors.
Second, you stated that the Genzyme Board retains the ability to adopt a poison pill. As you
are well aware, if adopted, the poison pill would prevent Sanofi-Aventis from acquiring
Genzyme, regardless of your shareholders support for a transaction.
Third, you indicated that the Genzyme Board may wield the Massachusetts anti-takeover statutes
in a manner that would, as a practical matter, prevent Sanofi-Aventis from acquiring Genzyme
without the cooperation of Genzymes Board, notwithstanding your shareholders support of a
transaction.
We believe it would be inappropriate for the Board to take these defensive actions. If we are
unable to have a direct dialog with you, in all fairness you should allow your shareholders
the opportunity to decide for themselves whether or not to accept our proposal.
Your shareholders should know with certainty that you will not interfere with their right to
benefit from our offer by taking any of the actions described above. Therefore, we ask that
you take action to make the Massachusetts anti-takeover statute inapplicable to our offer and
confirm that Genzymes 2011 annual meeting of shareholders, including the election of all
directors, will be held on schedule on the fourth Thursday of May (May 26, 2011), as provided
in your Bylaws.
It remains our preference to work together with you to reach a mutually agreeable transaction.
We continue to believe that a transaction is in the best interests of the shareholders of both
Genzyme and Sanofi-Aventis, and we look forward to hearing from you.
Yours sincerely,
Sanofi-Aventis
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By:
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/s/ Christopher A. Viehbacher
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Christopher A. Viehbacher
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Chief Executive Officer
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cc: Genzyme Board of Directors
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On November 8, 2010, Mr. Termeer sent the following response letter to Mr. Viehbacher:
November 8, 2010
Mr. Christopher A. Viehbacher
Chief Executive Officer
Sanofi-Aventis
174, avenue de France
75635 Paris, Cedex 13
Dear Chris,
Since we last met, Genzyme has provided the marketplace with detailed reports on our
significant progress and detailed information about our near-term plans and future prospects,
including the results of an independent third party study of alemtuzumabs revenue potential.
Sanofi-Aventis, for its own purposes, has chosen to dismiss or ignore this information and
stick to its opportunistic and inadequate $69.00 per share offer, even as analysts have
adjusted their targets to reflect the new information we have shared and we continue to have
the support of our shareholders.
As we have repeatedly told Sanofi and as our Lead Independent Director reaffirmed during our
Investor Meeting our Board is unanimous in its view that the $69.00 offer is not an
appropriate starting point for the discussions Sanofi seeks. Our shareholders understand and
support this position. In addition, as our Board has also made clear, we are open to a
transaction that appropriately recognizes Genzymes intrinsic value and prospects. We will
meet with Sanofi if it makes an offer that gives our Board of Directors reason to believe it
will lead to that result.
Our Board is committed to taking all appropriate actions in the best interests of Genzyme and
its shareholders and we have done, are doing, and will continue to do, exactly that.
Sincerely,
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/s/ Henri A. Termeer
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Henri A. Termeer
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Chairman and Chief Executive Officer
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Item 4 of the Schedule 14D-9 is hereby amended by replacing the second to last paragraph under the
heading (b) Background and Reasons for the Recommendation of the Company Board with the
following:
The Company Board recommended that management embark on a program to communicate with the
Companys shareholders about the intrinsic value of the Company. Accordingly, on October 22, 2010,
the Company held a meeting with investors and security analysts in New York to present the
Companys near-term financial outlook, report progress on the Companys actions to enhance
shareholder value, communicate expectations for the Companys late-stage pipeline, and outline the
reasons why the Offer dramatically undervalues the Company. A copy of the Companys presentation,
a copy of the Companys press release announcing the key points presented at the meeting and a
transcript of the Companys presentation were filed as Exhibits (a)(21), (a)(22) and (a)(23),
respectively, to this Schedule 14D-9. The Company subsequently met directly with several of the
Companys shareholders in the following days.
Item 9. Exhibits.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following thereto:
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Exhibit No.
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Description
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(a)(23)
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Press release issued by Genzyme, dated November 8, 2010.
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SIGNATURE
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.
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Dated: November 8, 2010
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GENZYME CORPORATION
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By:
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/s/ Thomas J. DesRosier
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Name:
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Thomas J. DesRosier
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Title:
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Senior Vice President, General Counsel
and Chief Legal Officer
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