SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 4)

 

 

AVANIR PHARMACEUTICALS, INC.

(Name of Subject Company)

Bigarade Corporation

(Offeror) a wholly owned direct subsidiary of

Otsuka America, Inc.

(Direct Parent of Offeror) a wholly owned indirect subsidiary of

Otsuka Pharmaceutical Co., Ltd.

(Parent of Offeror) a wholly owned subsidiary of

Otsuka Holdings Co., Ltd.

(Ultimate Parent of Offeror)

COMMON STOCK, $0.0001 PAR VALUE PER SHARE

(Title of Class of Securities)

05348P401

(CUSIP Number of Class of Securities)

Tadahide Yoshida

Director, Legal Affairs Department

Otsuka Pharmaceutical Co., Ltd.

Shinagawa Grand Central Tower

2-16-4 Konan, Minato-ku, Tokyo 108-8242, Japan

+81-3-6717-1400

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)

 

 

Copy to:

 

Mitsuhiro Kamiya Skadden, Arps, Slate, Meagher & Flom LLP Izumi Garden Tower, 21st Floor 1-6-1 Roppongi, Minato-ku, Tokyo, 106-6021 Japan +81-3-3568-2600		Kenton King Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue Palo Alto, CA 94301 (650) 470-4500		Hiroshi Sarumida Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY 10036 (212) 735-3000

 

 

CALCULATION OF FILING FEE

Transaction Valuation(1)		Amount of Filing Fee(2)
$3,540,211,988		$411,373

(1)

Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by multiplying the offer price of $17.00 per share of common stock of Avanir Pharmaceuticals, Inc., par value $0.0001 per share, (“Shares”) by 208,247,764 Shares, which is the sum of (i) 193,811,203 Shares issued and outstanding, and (ii) 14,436,561 Shares issuable upon or otherwise deliverable in connection with the exercise of outstanding stock options to purchase Shares and Shares issuable upon settlement of any restricted stock units.

(2)	The filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2015, issued August 29, 2014, by multiplying the transaction value by 0.0001162.

 

x	Check the 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: $411,373 Form or Registration No.: SC TO-T		Filing Party: Bigarade Corporation Date Filed: December 12, 2014

 

¨	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 offer subject to Rule 14d-1.

 

¨

Issuer tender offer subject to Rule 13e-4.

 

¨

Going-private transactions subject to Rule 13e-3.

 

¨

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: x

 

 

 

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This Amendment No. 4 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO (which, together with this Amendment, Amendment No. 1, dated December 31, 2014, Amendment No. 2, dated January 5, 2015, Amendment No. 3, dated January 6, 2015, and any amendments and supplements thereto, collectively constitute this “Schedule TO”) and is filed by Bigarade Corporation, a Delaware corporation (“Purchaser”) and a wholly owned indirect subsidiary of Otsuka Pharmaceutical Co., Ltd., a joint stock company organized under the laws of Japan (“Parent”). This Schedule TO relates to the tender offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.0001 per share (the “Shares”), of Avanir Pharmaceuticals, Inc., a Delaware corporation (“Avanir”), at a purchase price of $17.00 per Share (the “Offer Price”), net to the seller in cash, without interest thereon and less any applicable withholding taxes payable in respect thereof, upon the terms and subject to the conditions set forth in (i) the Offer to Purchase, dated December 12, 2014 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), which is set forth as Exhibit (a)(1)(A) hereto, and (ii) the related Letter of Transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”), which is set forth as Exhibit (a)(1)(B) hereto (which offer, upon such terms and subject to such conditions, as it and they may be amended or supplemented from time to time, constitutes the “Offer”).

Capitalized terms used, but not otherwise defined, in this Amendment shall have the meanings ascribed to them in the Schedule TO. The information in the Schedule TO is incorporated into this Amendment by reference to all applicable items in the Schedule TO, except that such information is hereby amended and supplemented to the extent specifically provided herein.

Items 1, 4, 8 and 11.

Items 1, 4, 8 and 11 of this Schedule TO are hereby amended and supplemented by the following:

“The Offer and withdrawal rights expired at 12:00 Midnight, New York City time, at the end of Monday, January 12, 2015. The Depositary has advised that, as of the expiration time, 121,815,032 Shares were validly tendered and not withdrawn (excluding shares subject to guaranteed delivery procedures that were not validly tendered prior to the expiration date of the Offer), representing approximately 62.6% of the total outstanding Shares. Therefore, the Minimum Condition has been satisfied. As all other conditions to the Offer were satisfied, Purchaser has accepted for purchase all Shares that were validly tendered and not validly withdrawn. Purchaser will promptly pay for such Shares at the Offer Price.

On January 13, 2015, Parent consummated the Merger pursuant to the terms of the Merger Agreement and in accordance with Section 251(h) of the DGCL.

On January 13, 2015, Otsuka Holdings Co., Ltd. issued a press release announcing the expiration and results of the Offer and the consummation of the Merger.

The full text of the press release issued by Otsuka Holdings Co., Ltd. on January 13, 2015 announcing the expiration and results of the Offer and the consummation of the Merger is filed as Exhibit (a)(5)(G) hereto and is incorporated herein by reference.”

Item 12. Exhibits

Item 12 of this Schedule TO is hereby amended and supplemented by adding Exhibit (a)(5)(G) thereto as follows:

(a)(5)(G) Press Release of Otsuka Holdings Co., Ltd. dated January 13, 2015

 

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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.

Dated: January 13, 2015

 

 

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Exhibit Index

 

Exhibit No.		Description
(a)(1)(A)		Offer to Purchase, dated December 12, 2014*†
(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, Commercial Banks, Trust Companies and Other Nominees*†
(a)(1)(F)		Form of Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification), including instructions for completing the form.*†
(a)(1)(G)		Form of Summary Advertisement as published in The Wall Street Journal on December 12, 2014†
(a)(2)		Not applicable
(a)(3)		Not applicable
(a)(4)		Not applicable
(a)(5)(A)		English Translation of Press Release of Otsuka Holdings Co., Ltd. filed with the Tokyo Stock Exchange and dated December 2, 2014 (incorporated by reference to the Tender Offer Statement on Schedule TO-C filed by Ultimate Parent, Parent and Purchaser with the Securities and Exchange Commission on December 2, 2014)†
(a)(5)(B)		Press Release of Otsuka Pharmaceutical Co., Ltd. dated December 2, 2014 (incorporated by reference to the Tender Offer Statement on Schedule TO-C filed by Ultimate Parent, Parent and Purchaser with the Securities and Exchange Commission on December 2, 2014)†
(a)(5)(C)		English Translation of Investor Presentation of Otsuka Holdings Co., Ltd. dated December 2, 2014 (incorporated by reference to the Tender Offer Statement on Schedule TO-C filed by Ultimate Parent, Parent and Purchaser with the Securities and Exchange Commission on December 2 2014)†
(a)(5)(D)		English Translation of the Japanese-language Extraordinary Report filed by Otsuka Holdings Co., Ltd., with the Director-General of the Kanto Local Finance Bureau of the Ministry of Finance of Japan pursuant to the Financial Instruments and Exchange Act of Japan, dated December 10, 2014)†
(a)(5)(E)		Press Release of Otsuka Pharmaceutical Co., Ltd., dated December 13, 2014†
(a)(5)(F)		Press Release of Otsuka Holdings Co., Ltd. dated January 5, 2015†
(a)(5)(G)		Press Release of Otsuka Holdings Co., Ltd. dated January 13, 2015
(b)(1)		Debt Commitment Letter, dated as of December 9, 2014 among Otsuka Holdings Co., Ltd., Otsuka America, Inc. and The Bank Of Tokyo-Mitsubishi UFJ, Ltd.†
(b)(2)		Credit Agreement, dated as of January 6, 2015, by and between Otsuka America, Inc. and the Bank of Tokyo-Mitsubishi UFJ, Ltd.†
(d)(1)		Agreement and Plan of Merger, dated as of December 1, 2014, by and among Otsuka Pharmaceutical Co., Ltd., Bigarade Corporation and Avanir Pharmaceuticals, Inc. (incorporated by reference to the Current Report on Form 8-K filed by Avanir Pharmaceuticals, Inc. with the Securities and Exchange Commission on December 2, 2014)†
(d)(2)		Mutual Non-Disclosure Agreement, dated as of May 13, 2013 between Otsuka Pharmaceutical Co., Ltd. and Avanir Pharmaceuticals, Inc.†
(d)(3)		First Amendment to Non-Disclosure Agreement, dated as of July 16, 2013, between Otsuka Pharmaceutical Co., Ltd. and Avanir Pharmaceuticals, Inc.†
(d)(4)		Second Amendment to Non-Disclosure Agreement, dated as of September 2, 2014, between Otsuka Pharmaceutical Co., Ltd. and Avanir Pharmaceuticals, Inc.†
(g)		Not applicable
(h)		Not applicable

 

*	Included in mailing to stockholders.

†	Previously filed.

 

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Exhibit (a)(5)(G)

 

FOR IMMEDIATE RELEASE
		Company name:		Otsuka Holdings Co., Ltd.
		Representative name:		Tatsuo Higuchi President and Representative Director, CEO
		Stock ticker:		4578, Tokyo Stock Exchange, First Section
		Contact:		Yuji Kogure Director, Investor Relations Department
		Telephone:		+81-3-6361-7411

Otsuka Pharmaceutical Completes Acquisition of Avanir Pharmaceuticals

Tokyo, Japan – January 13, 2015 – Otsuka Holdings Co., Ltd. (“Otsuka Holdings”) announced today that its wholly-owned subsidiary, Otsuka Pharmaceutical Co., Ltd. (“Otsuka Pharmaceutical”), successfully completed, through its wholly-owned indirect subsidiary Bigarade Corporation, its acquisition of Avanir Pharmaceuticals, Inc. (NASDAQ: AVNR) (“Avanir”) for US $17.00 per share, net to the seller in cash, without interest and less any required withholding taxes. The acquisition was effected through a tender offer (“Tender Offer”), which was commenced on December 12, 2014, New York time and expired at 12:00 midnight, New York time at the end of January 12, 2015, followed by a merger on January 13, 2015. As a result of the merger, Avanir’s common stock has leased to be traded on the NASDAQ as of January 13, 2015 and will no longer be listed.

 

1.	Outline of the Tender Offer

 

1)	Offeror in the Public Tender Offer

Bigarade Corporation

 

2)	Company Subject to the Public Tender Offer

Avanir Pharmaceuticals, Inc.

 

3)	Type of Stock that is to be Acquired

All issued and outstanding shares of common stock

 

4)	Tender Offer Price

US $17.00 (Seventeen Dollars) per share of common stock

 

5)	Tender Offer Period

From December 12, 2014 until 12:00 midnight at the end of January 12, 2015, New York time

 

6)	Minimum number of shares tendered

Bigarade Corporation will consummate the Tender Offer in the event that more than 50% of the issued and outstanding shares of Avanir’s common stock are tendered.

 

2.	Results of the Tender Offer

 

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1)	Status of Tendered Shares (as of 12:00 midnight at the end of January 12, 2015, New York time)

Ratio of the number of shares planned to be purchased to the number of outstanding shares: 100%

Ratio of the number of shares validly tendered and not withdrawn to the number of outstanding shares (the number of tendered shares): 62.6% (121,815,032 shares)

(Not including 3.1% (5,956,856 shares) tendered through Notice of Guaranteed Delivery^*1)

 

2)	Outcome of the Tender Offer

Because the number of tendered shares satisfies the minimum condition set forth in 1. (6) above, Bigarade Corporation has purchased all tendered shares and such shares were converted into the right to receive US $17.00 per share net to the seller in cash, without interest thereon and less any applicable withholding taxes.

*1 Notice of Guaranteed Delivery

Notice of Guaranteed Delivery is a document enabling a stockholder who is unable for certain reasons to complete the required procedures to tender shares prior to the expiration of the tender offer to do so through an eligible financial institution within three trading days following the closing of the tender offer.

 

3.	Completion of the Acquisition

Thereafter on January 13, 2015 New York time, in accordance with Delaware law, Bigarade Corporation completed a short-form merger with and into Avanir with Avanir continuing as the surviving corporation and wholly-owned subsidiary of Otsuka Pharmaceutical, thereby consummating Otsuka Pharmaceutical’s acquisition of Avanir. At the effective time of the merger on January 13, 2015 New York time, non-tendered shares of Avanir (other than shares of common stock held in the treasury of Avanir or by Otsuka Pharmaceutical, Bigarade Corporation or any other direct or indirect wholly owned subsidiary of Avanir or Otsuka Pharmaceutical, which were canceled without consideration and extinguished, or by stockholders of Avanir who validly exercised their appraisal rights under Delaware law with respect to such shares) were canceled and converted into the right to receive US $17.00 per share net to the stockholder in cash, without interest thereon and less any applicable withholding taxes.

 

4.	Conversion of Target to Subsidiary

 

1)	Reason for Transfer

As a result of the Tender Offer and merger, Avanir was converted into a consolidated subsidiary of Otsuka Holdings.

 

2)	Number of Shares Held, Amount, and Share Ownership Before and After Purchase

 

Shares held before purchase		0 shares (Share of voting rights : 0%)
Shares purchase		194,689,042 shares
Purchase amount		Approximately US$3,560 million*2
Shares held after purchase		194,689,042 shares (Share of voting rights: 100%)

 

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*2 Advisory and related fees have been included.

 

3)	Outline of Company Converted into a Subsidiary

 

Corporate name		Avanir Pharmaceuticals, Inc.
Date established		August, 31, 1988
Representative		Keith A. Katkin, President and Chief Executive Officer
Address		30 Enterprise, Suite 400 Aliso Viejo, CA 92656, US
Major business activities		Development, manufacturing and sales of pharmaceutical products
Capital		US 19,366 dollars (as of September 30, 2014)
Number of shares outstanding		193,508,327 shares of Common Stock (as of September 30, 2014)
Fiscal year end		September
Number of employees		485 (as of September 30, 2014)
Major shareholders and percentage of ownership (as of December 1, 2014)		Baker Brother Life Sciences, L.P. 16.9% T. Rowe Price Associates, Inc. 14.5% Fidelity Management and Research LLC 10.6%
Relationship with Otsuka Holdings Co., Ltd.		There is no capital, personnel or transactional relationship between Avanir and Otsuka Holdings that needs to be disclosed.

Trend in Financial Results in Three Most Recent Fiscal Years

 

(In thousands of dollars)		Year ended September 2014				Year ended September 2013				Year ended September 2012
Sales			115,029				75,365				41,275
Operating income (loss)			(46,344	)			(71,426	)			(58,402	)
Net earnings			(50,436	)			(75,475	)			(59,743	)
Total assets			306,983				76,079				86,011
Net assets			273,389				18,471				36,837
Net assets per share (dollars)			1.69				0.12				0.27
Net income per share (dollars)			(0.31	)			(0.53	)			(0.45	)
Dividends per share (dollars)			—				—				—

 

4)	Conversion Date

January 13, 2015, New York time

 

4.

Prospects

We will provide an additional notification once the details are fixed regarding the impact that this acquisition will have on our consolidated financial results.

Forward-looking Statements

This press release contains forward-looking statements with respect to the tender offer and related transactions, including without limitation statements regarding the anticipated benefits of the transaction and any statements of assumptions underlying the foregoing. Words such as “expects,” “anticipates,” “believes,” “plans,” “intends,” “estimates,” “projects,” “forecasts,” “outlook,” and similar expressions

 

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are also intended to identify forward-looking statements. The statements involve known and unknown risks, uncertainties, and other factors which may cause the company’s actual results, earnings, performance, or achievements to be materially different from any future results, performance, or achievements expressed or implied by such forward-looking statements. Such factors include, but are not limited to, the following: general industry and market conditions, general domestic and international economic conditions such as interest rate and currency exchange fluctuations, technological advances and patents attained by competitors, challenges inherent in new product development and clinical trials, claims and concerns about product safety and efficacy, obtaining regulatory approvals, domestic and foreign healthcare reforms, and healthcare cost containment, laws and regulations affecting domestic and foreign operations, and failure to gain market acceptance or third-party consents. We will not undertake and specifically decline any obligation to update or correct any forward-looking statements to reflect events or circumstances after the date of such statements or to reflect the occurrence of anticipated or unanticipated events.

 

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