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. 8)
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
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Transaction Valuation* |
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Amount of Filing Fee** |
$359,743,766 |
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$36,226.20 |
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* |
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.
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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. |
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Amount Previously Paid: $36,226.20 |
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Filing Party: Astellas Pharma Inc. |
Form or Registration No.: Schedule TO |
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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:
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x |
third-party tender offer subject to Rule 14d-1. |
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¨ |
issuer tender offer subject to Rule 13e-4. |
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¨ |
going-private transaction subject to Rule 13e-3. |
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¨ |
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: ¨
This Amendment No. 8 (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:
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(a)(1)(Q) |
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Letter to Ocata stockholders from Astellas Pharma Inc., dated January 25, 2016. |
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.
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Laurel Acquisition Inc. |
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By: |
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/s/ Masao Yoshida |
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Name: Masao Yoshida |
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Title: President and Chief Executive Officer |
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Astellas Pharma Inc. |
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By: |
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/s/ Yoshihiko Hatanaka |
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Name: Yoshihiko Hatanaka |
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Title: President and Chief Executive Officer |
Date: January 25, 2016
INDEX TO EXHIBITS
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(a)(1)(A) |
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Offer to Purchase, dated as of November 19, 2015. |
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(a)(1)(B) |
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Form of Letter of Transmittal. |
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(a)(1)(C) |
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Form of Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees. |
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(a)(1)(D) |
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Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and other Nominees. |
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(a)(1)(E) |
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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). |
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(a)(1)(F) |
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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). |
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(a)(1)(G) |
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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). |
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(a)(1)(H) |
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Summary Advertisement published on November 19, 2015. |
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(a)(1)(I) |
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Press Release issued by Astellas Pharma Inc., dated November 19, 2015. |
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(a)(1)(J) |
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Joint Press Release issued by Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated December 18, 2015. |
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(a)(1)(K) |
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Letter to Ocata stockholders from Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated December 22, 2015. |
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(a)(1)(L) |
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Letter to Ocata stockholders from Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated January 11, 2016. |
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(a)(1)(M) |
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Transcript of a voicemail message reminding Ocata stockholders of the expiration of the Offer. |
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(a)(1)(N) |
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Infographic related to the Offer. |
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(a)(1)(O) |
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Joint Press Release issued by Astellas Pharma Inc. and Ocata Therapeutics, Inc., dated January 22, 2016. |
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(a)(1)(P) |
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Letter to Ocata employees from the President & CEO of Astellas Pharma Inc., dated January 22, 2016. |
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(a)(1)(Q) |
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Letter to Ocata stockholders from Astellas Pharma Inc., dated January 25, 2016. |
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(a)(5)(A) |
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Class Action Complaint, dated November 17, 2015 (Nadle v. Heffernan et al.). |
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(d)(1) |
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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) |
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(d)(2) |
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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) |
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(d)(3) |
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Letter Agreement, dated as of September 4, 2015, by and between Ocata and Astellas. |
Exhibit (a)(1)(Q)
January 25, 2016
Re: Your Ocata Therapeutics stock; ACTION REQUIRED
Dear Ocata Stockholder,
On
November 10, 2015, Astellas agreed to acquire Ocata at a price of $8.50 per share. We are writing to you because you hold shares of Ocatas common stock. The tender offer is set to expire on February 9, 2016, at 5:00 pm EST.
We are very excited about the combination of Astellas and Ocata and are fully committed to achieving a successful completion of the transaction on
the agreed upon terms. We view this as the coming together of two companies with significant accomplishments and a shared commitment to the development of innovative therapies that address the unmet medical needs of patients suffering from severe
diseases. To this end, we intend to develop a center of excellence in regenerative medicine around the Ocata platform.
We highly value
Ocatas R&D capabilities, where we plan to make further investments, and expect Ocata to play a key role within Astellas R&D in ophthalmology and cell therapy. We believe that Astellas offer represents an attractive proposal
to Ocatas stockholders, and we look forward to closing the tender offer at the end of this offering period.
The offer price of
$8.50 in cash per Ocata share represents a premium of over 90% to Ocatas share price on the day prior to announcement of the transaction. We remain committed to offering the $8.50 price per share, even though the Wells Fargo Biotechnology
Small Cap Index of companies is down by 26% since we announced the deal.
What do you need to do?
The tender offer is scheduled to expire on February 9, 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 act on
your behalf as soon as possible. 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 February 9, 2016 expiration date.
If you have questions about the offer, or are unclear about what to do, please contact the
information agent: Georgeson Inc. at (866) 278-8941.
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 Ocatas 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 managements 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
Ocatas 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 Ocatas
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 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 OCATAS STOCKHOLDERS BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. Such documents have been made available to Ocatas 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 SECs website: www.sec.gov. OCATAS 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.
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