OCAT (MM)

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE TO

(Rule 14d-100)

TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. 3)

 

 

Ocata Therapeutics, Inc.

(Name of Subject Company (Issuer))

Laurel Acquisition Inc.

an indirect wholly-owned subsidiary of

Astellas Pharma Inc.

(Names of Filing Persons (Offerors))

Common Stock, $0.001 par value per share

(Title of Class of Securities)

67457L100

(CUSIP Number of Class of Securities (Underlying Common Stock))

 

 

Yoshihiko Hatanaka

President and Chief Executive Officer

Astellas Pharma Inc.

2-5-1, Nihonbashi-Honcho, Chuo-ku

Tokyo 103-8411, Japan

+(81)-3-3244-3000

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

 

 

Copies to:

Scott F. Smith, Esq.

Jack S. Bodner, Esq.

Covington & Burling LLP

The New York Times Building

620 Eighth Avenue

New York, NY 10018-1045

(212) 841-1000

 

 

Calculation of Filing Fee

 

Transaction Valuation*		Amount of Filing Fee**
$359,743,766		$36,226.20

*

Estimated for purposes of calculating the filing fee only. This amount assumes the purchase of up to 42,322,796 shares of common stock, par value $0.001 per share, of Ocata, at a purchase price of $8.50 per share. Such number of shares consists of (i) 42,300,462 shares of common stock issued and outstanding as of November 18, 2015, and (ii) 22,334 shares of common stock that are expected to be issuable before the expiration of the Offer under vested options and other rights to acquire shares of common stock.

**	The amount of the filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), equals 0.0001007 of the transaction valuation.

 

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: $36,226.20		Filing Party: Astellas Pharma Inc.
Form or Registration No.: Schedule TO		Date Filed: November 19, 2015

 

¨	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.

¨

issuer tender offer subject to Rule 13e-4.

¨

going-private transaction 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:  ¨

 

 

 

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This Amendment No. 3 (this “Amendment”) amends and supplements the Tender Offer Statement filed on Schedule TO, originally filed with the Securities and Exchange Commission (the “SEC”) on November 19, 2015 (together with any amendments and supplements thereto, including this Amendment, the “Schedule TO”), relates to the offer by Laurel Acquisition Inc., a Delaware corporation (the “Purchaser”) and an indirect wholly-owned subsidiary of Astellas Pharma Inc. (“Astellas”), to purchase all of the issued and outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Ocata Therapeutics, Inc., a Delaware corporation (“Ocata”), at a purchase price of $8.50 per Share, net to the seller in cash, without interest, subject to any withholding of taxes required by applicable law, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 19, 2015 (the “Offer to Purchase”), and in the related Form of Letter of Transmittal, copies of which are filed with this Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.

 

Items 1-9;

Item 11

(a) The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Item incorporates by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:

“On December 18, 2015, Purchaser extended the expiration of the Offer. The Offer was previously scheduled to expire at 12:00 midnight, New York City Time, at the end of the day on December 17, 2015. The Expiration Date of the Offer is extended to 5:00 p.m., New York City time, on January 21, 2016, unless further extended. The Depositary has advised us that, as of 5:00 p.m. New York City time, on December 17, 2015, 15,323,756 Shares had been validly tendered and not validly withdrawn, representing approximately 36.21% of the outstanding Shares.

In connection with the extension of the expiration of the Offer, the Purchaser, Astellas and Ocata entered into an amendment to the Merger Agreement on December 18, 2015, to modify the Minimum Condition so that Astellas is not obligated to purchase any tendered shares in the Offer unless there has been validly tendered to the Purchaser in the Offer, and not validly withdrawn before the expiration of the Offer, a number of Shares that, when counted together with Shares, if any, owned by Astellas and its controlled affiliates, equals at least a majority of the Shares issued and outstanding at the expiration of the Offer. The foregoing summary of the amendment to the Merger Agreement is qualified by reference to Amendment No. 1 to the Merger Agreement itself, which is attached as Exhibit (d)(4) to the Schedule TO and is incorporated herein by reference.

Ocata has informed the Purchaser that, as of the close of business on December 17, 2015, 42,322,796 Shares were issued and outstanding. Based upon the foregoing, as of the close of business on December 17, 2015, the Minimum Condition would be satisfied if 21,161,399 Shares were validly tendered and not properly withdrawn in the Offer.

On December 18, 2015, Astellas and Ocata issued a joint press release announcing the extension of the Offer. The full text of the press release is attached as Exhibit (a)(1)(J) to the Schedule TO and is incorporated herein by reference.”

(b) Amendments to the Offer to Purchase and other Exhibits to the Schedule TO:

The information set forth in the Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, is hereby amended and supplemented as follows:

All references to “at 12:00 midnight, New York City time, at the end of the day on December 17, 2015” set forth in the Offer to Purchase (Exhibit (a)(1)(A)), Form of Letter of Transmittal (Exhibit (a)(1)(B)), Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(C)), and Form of Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)) are hereby amended and replaced with “at 5:00 p.m., New York City time, on January 21, 2016.”

The definition of “Minimum Condition,” in all references to the “Minimum Condition” set forth in the Offer to Purchase (Exhibit (a)(1)(A)), Form of Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(C)), and Form of Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)) is hereby amended and replaced with “The Offer, and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer, is conditioned on there being validly tendered in the Offer and not properly withdrawn before the expiration of the Offer, a number of Shares that, together with Shares, if any, owned by the Purchaser, equals at least a majority of the Shares issued and outstanding at the expiration of the Offer (the “Minimum Condition”).”

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Item 12.

Exhibits.

Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits thereto:

(a)(1)(J) Joint Press Release issued by Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated December 18, 2015.

(d)(4) Amendment No. 1 to the Agreement and Plan of Merger, dated December 18, 2015 (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Ocata Therapeutics, Inc. with the SEC on December 18, 2015).

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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.

 

Date: December 18, 2015

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INDEX TO EXHIBITS

 

(a)(1)(A)		Offer to Purchase, dated as of November 19, 2015.
(a)(1)(B)		Form of Letter of Transmittal.
(a)(1)(C)		Form of Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees.
(a)(1)(D)		Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and other Nominees.
(a)(1)(E)		English translation of Press Release of Astellas Pharma Inc. filed with the Tokyo Stock Exchange and dated November 10, 2015 (incorporated by reference to Exhibit 99.1 to the Schedule TO-C filed by Astellas with the SEC on November 10, 2015).
(a)(1)(F)		Joint Press Release of Ocata Therapeutics, Inc. and Astellas Pharma Inc., dated November 10, 2015 (incorporated by reference to Exhibit 99.2 to the Schedule TO-C filed by Astellas with the SEC on November 10, 2015).
(a)(1)(G)		English Translation of Investor Presentation of Astellas Pharma Inc., dated November 10, 2015. (incorporated by reference to Exhibit 99.3 to the Schedule TO-C filed by Astellas with the SEC on November 10, 2015).
(a)(1)(H)		Summary Advertisement published on November 19, 2015.
(a)(1)(I)		Press Release issued by Astellas Pharma Inc., dated November 19, 2015.
(a)(1)(J)		Joint Press Release issued by Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated December 18, 2015.
(a)(5)(A)		Class Action Complaint, dated November 17, 2015 (Nadle v. Heffernan et al.).
(d)(1)		Agreement and Plan of Merger, dated as of November 10, 2015, by and among Astellas, the Purchaser and Ocata (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Ocata with the SEC on November 10, 2015).
(d)(2)		Form of Support Agreement(s), dated as of November 10, 2015, which were entered into among Astellas and the Purchaser and each of the directors and executive officers of Ocata (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Ocata with the SEC on November 10, 2015).
(d)(3)		Letter Agreement, dated as of September 4, 2015, by and between Ocata and Astellas.
(d)(4)		Amendment No. 1 to the Agreement and Plan of Merger, dated December 18, 2015 (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Ocata Therapeutics, Inc. with the SEC on December 18, 2015).

Exhibit (a)(1)(J)

 

Astellas Extends Tender Offer to Acquire All Outstanding

Shares of Ocata Therapeutics

Tokyo and Massachusetts, December 18, 2015 - Astellas Pharma Inc. (TSE: 4503, President and CEO: Yoshihiko Hatanaka, “Astellas”) and Ocata Therapeutics, Inc. (NASDAQ: OCAT, President and CEO: Paul Wotton, “Ocata”) today announced that Astellas has extended, through its indirect wholly-owned subsidiary Laurel Acquisition Inc. (“Laurel”), the offering period of the tender offer to purchase all issued and outstanding shares of common stock of Ocata (“Shares”) for a price of US$8.50 per Share, net to the holder in cash (“Tender Offer”). The Tender Offer, which was previously scheduled to expire at 12:00 midnight, U.S. Eastern Time, at the end of the day on December 17, 2015, has been extended until 5:00 pm, U.S. Eastern Time, on January 21, 2016, unless further extended. The extension of the Tender Offer will allow Ocata’s stockholders more time to tender their Shares into the Tender Offer.

In connection with the extension of the expiration of the Tender Offer, Astellas, Ocata and Laurel entered into an amendment to the Merger Agreement dated November 10, 2015, to modify one of the conditions to the Tender Offer, so that Astellas is not obligated to purchase any tendered Shares in the Tender Offer unless there has been validly tendered to Laurel in the Tender Offer, and not validly withdrawn before the expiration of the Tender Offer, a number of Shares that, when counted together with Shares, if any, owned by Astellas and its affiliates, equals at least a majority of the Shares issued and outstanding at the expiration of the Tender Offer. Other terms and conditions of the Tender Offer shall remain unchanged during the extended offering period.

“We believe Astellas’ proposed offer remains attractive to Ocata’s shareholders,” commented Yoshihiko Hatanaka, President and CEO, Astellas. “We continue to be very excited about the combination of our two companies and we are looking forward to a successful closing.”

 

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About Astellas

Astellas Pharma Inc., based in Tokyo, Japan, is a company dedicated to improving the health of people around the world through the provision of innovative and reliable pharmaceutical products. We focus on Urology, Oncology, Immunology, Nephrology and Neuroscience as prioritized therapeutic areas while advancing new therapeutic areas and discovery research leveraging new technologies/modalities. We are also creating new value by combining internal capabilities and external expertise in the medical/healthcare business. Astellas is on the forefront of healthcare change to turn innovative science into value for patients. For more information, please visit our website at www.astellas.com/en.

About Ocata

Ocata Therapeutics, Inc. is a clinical stage biotechnology company focused on the development and commercialization of new therapies in the field of regenerative medicine. Ocata’s most advanced products are in clinical trials for the treatment of Stargardt’s macular degeneration, dry age-related macular degeneration, and myopic macular degeneration. Ocata’s intellectual property portfolio includes pluripotent stem cell platforms – hESC and induced pluripotent stem cell (iPSC) – and other cell therapy research programs. For more information on Ocata, please visit www.ocata.com.

Cautionary Statement Regarding Forward-Looking Statements

Any statements made in this communication that are not statements of historical fact, including statements about the expected timetable for completing the transaction and Astellas’ and Ocata’s beliefs and expectations and statements about Astellas’ proposed acquisition of Ocata, including the timing of and closing conditions to the acquisition, and the potential effects of the acquisition on both Astellas and Ocata are forward-looking statements that are based on management’s beliefs, certain assumptions and current expectations and should be evaluated as such. These statements may be identified by their use of forward-looking terminology such as the words “expects,” “projects,” “anticipates,” “intends” and other similar words. Forward-looking statements include statements that may relate to Astellas’ or Ocata’s plans, objectives, strategies, goals, future events, future revenues or performance, and other information that is not historical information. Such forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from those projected. These risks and uncertainties include, but are not limited to, general economic, business and market conditions and the satisfaction of the conditions to

 

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closing of the proposed transaction. For a more complete discussion of certain of the risks and uncertainties that could cause actual results to differ from those contained in the forward-looking statements with respect to Ocata, see the discussion of risks and uncertainties in Ocata’s annual report on Form 10-K for the fiscal year ended December 31, 2014, its most recent Quarterly Report on Form 10-Q, and other SEC filings. The forward-looking statements contained in this news release are made as of the date hereof, and neither Astellas nor Ocata undertakes any obligation to update any forward-looking statements, whether as a result of future events, new information or otherwise, except as required by law.

Important Additional Information

This communication is provided for informational purposes only. No statement in this document is an offer to purchase or a solicitation of an offer to sell securities. Any offers to purchase or solicitation of offers to sell will be made only pursuant to the Tender Offer Statement on Schedule TO (including the Offer to Purchase, the Letter of Transmittal and other documents relating to the Offer) that Astellas and Laurel, an indirect wholly-owned subsidiary of Astellas, filed with the Securities and Exchange Commission (the “SEC”) on November 19, 2015. In addition, Ocata filed a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer on November 19, 2015. THE TENDER OFFER STATEMENT (INCLUDING THE OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND OTHER OFFER DOCUMENTS) AND THE SOLICITATION/RECOMMENDATION STATEMENT CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY AND CONSIDERED BY OCATA’S STOCKHOLDERS BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER. Such documents have been made available to Ocata’s stockholders at no expense to them. In addition, you may obtain copies of these documents (and all other Offer documents filed with the SEC) at no charge on the SEC’s website: www.sec.gov.

OCATA’S STOCKHOLDERS ARE ADVISED TO READ THE SCHEDULE TO AND THE SCHEDULE 14D-9, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT OFFER DOCUMENTS FILED WITH THE SEC BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE TENDER OFFER, BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO.

 

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Contacts:

Astellas Pharma Inc.

Corporate Communications

TEL: 03-3244-3201 FAX: 03-5201-7473

http://www.astellas.com/en

U.S Media Contact

Marjorie Moeling

TEL: 224-205-5205 MOBILE: 847-682-7471

Marjorie.moeling@astellas.com

Ocata Therapeutics, Inc.

Investors:

Westwicke Partners

John Woolford, 443-213-0506

john.woolford@westwicke.com

or

Press:

Russo Partners

David Schull, 858-717-2310

david.schull@russopartnersllc.com

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