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. 5)

 

 

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. 5 (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.

Item 12. Exhibits.

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

(a)(1)(L) Letter to Ocata stockholders from Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated January 11, 2016.

(a)(1)(M) Transcript of a voicemail message reminding Ocata stockholders of the expiration of the Offer.

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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: January 11, 2016

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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)(1)(K)		Letter to Ocata stockholders from Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated December 22, 2015.
(a)(1)(L)		Letter to Ocata stockholders from Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated January 11, 2016.
(a)(1)(M)		Transcript of a voicemail message reminding Ocata stockholders of the expiration of the Offer.
(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.

Exhibit (a)(1)(L)

 

January 11, 2016

Re: Your Ocata Therapeutics stock; ACTION REQUIRED

Dear Ocata Stockholder,

We are writing to you today because you hold shares of Ocata Therapeutics’ common stock.

Astellas Pharma has agreed to acquire Ocata Therapeutics in an all cash transaction valued at $8.50 per share.

 

 

•

The entire management team of Ocata Therapeutics supports the transaction and has tendered their shares into the offer.

 

•

Astellas is committed to the transaction on the terms and subject to the conditions provided for in the Merger Agreement and the offer documents.

 

•

You will receive $8.50 per share tendered in cash upon successful completion of the acquisition. $8.50 per share is 90% higher than Ocata’s share price on the day prior to announcement of the transaction.

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•

The $8.50 per share offer is 101% higher than Ocata’s volume weighted average share price over the 3 months prior to announcement.

What does Astellas plan to do after the Acquisition is completed?

 

•

Astellas has additional financial resources and infrastructure to invest in the Ocata pipeline. Applying these resources and infrastructure to multiple clinical and pre-clinical programs may advance projects that are not being developed and this could be beneficial for patients in need.

 

•

Astellas plans to create, based on the Ocata platform, a Center of Excellence in Regenerative Medicine, which could further develop research on regenerative medicine.

In order for the acquisition to be completed and for you to receive your cash, more than 50% of the outstanding shares must be tendered into the offer.

If less than 50% of the outstanding shares are tendered, the transaction will not close and you will NOT receive $8.50 per share in cash. Instead, you will continue to own shares of Ocata, the price of which was $4.46 on the day before the Astellas deal was announced.

What do you need to do?

The tender offer is scheduled to expire on January 21, 2016 at 5:00pm EST.

If you hold your shares at a bank or broker and would like to tender your shares into the offer, you should instruct your bank or broker to

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act on your behalf as soon as possible. The deadline is approaching. If you hold your shares directly (e.g., paper certificates) and wish to tender your shares, please complete the enclosed Letter of Transmittal and return it in the enclosed envelope so that it arrives before the January 21, 2016 expiration date.

 

If you have already tendered your shares in the offer, you do not need to take any further action.

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 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.

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

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other documents relating to the Offer) that Astellas Pharma Inc. and Laurel Acquisition Inc. filed with the Securities and Exchange Commission (the “SEC”) on November 19, 2015. In addition, Ocata Therapeutics, Inc. (“Ocata”) filed a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer Statement 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 OFFER. Such documents have been made available to Ocata’s stockholders at no expense to them at www.ocata.com. 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 OFFER, BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO.

Exhibit (a)(1)(M)

Voicemail Message:

“We are calling to remind you that the Astellas tender offer for Ocata expires on January 21 at 5PM eastern time. Astellas is offering $8.50 per Ocata share, which is 90% higher than Ocata’s share price on the day prior to announcement of the transaction. Ocata’s board of directors unanimously recommends that you tender your shares. If you hold your Ocata shares through a bank or broker, please contact the person at that firm responsible for your account as soon as possible. The deadline is approaching. Contact your financial advisor promptly so you don’t miss out. Thank you.”

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 Pharma Inc. and Laurel Acquisition Inc. filed with the Securities and Exchange Commission (the “SEC”) on November 19, 2015. In addition, Ocata Therapeutics, Inc. (“Ocata”) filed a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Tender Offer Statement 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 OFFER. Such documents have been made available to Ocata’s stockholders at no expense to them at www.ocata.com. 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 OFFER, BECAUSE THEY CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO.