Amended Statement of Ownership: Solicitation (sc 14d9/a)
November 20 2017 - 4:32PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14D-9
(Rule 14d-101)
Solicitation/Recommendation Statement
Under Section 14(d)(4) of the Securities Exchange Act of 1934
Amendment No. 1
Ocera
Therapeutics, Inc.
(Name of Subject Company)
Ocera
Therapeutics, Inc.
(Name of Person(s) Filing Statement)
Common Stock, par value $0.00001 per share
(Title of Class of Securities)
67552A108
(CUSIP Number
of Class of Securities)
Ocera Therapeutics, Inc.
555 Twin Dolphin Drive, Suite 615
Redwood City, California 94065
(650) 475-0150
(Name, address and telephone numbers of person authorized to receive notice and communications
on behalf of the persons filing statement)
With copies to:
Mitchell S. Bloom, Esq.
Daniel Lang, Esq.
Andrew
H. Goodman, Esq.
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New
York, NY 10018
(212) 813-8800
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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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This Amendment No. 1 (this
Amendment
) amends and supplements the
Solicitation/Recommendation Statement on
Schedule 14D-9 filed
with the U.S. Securities and Exchange Commission (the
SEC
) on November 9, 2017 (together with the exhibits
thereto and as amended or supplemented from time to time, the
Schedule
14D-9
) by Ocera Therapeutics, Inc., a Delaware corporation (the
Company
). The
Schedule 14D
-
9 relates to the tender offer (the
Offer
) by MEH Acquisition Co. (
Purchaser
), a Delaware corporation and direct wholly-owned subsidiary of MAK LLC (
Parent
), a Delaware
limited liability company and an indirect wholly-owned subsidiary of Mallinckrodt plc (
Mallinckrodt
), an Irish public limited company, to purchase all of the Companys outstanding shares, par value $0.00001 per share (the
Shares
), at an offer price of (i) $1.52 per Share, net to the holder in cash, plus (ii)
one non-transferrable contingent
value right per Share, which represents the
contractual right to receive one or more payments in cash currently estimated to be up to $2.58 in the aggregate, contingent upon the achievement of certain milestones under a Contingent Value Rights Agreement (the
CVR Agreement
)
to be entered into among Parent, Continental Stock Transfer & Trust Company, as rights agent, and for limited purposes, Mallinckrodt, at or prior to the time that Purchaser accepts for payment all Shares tendered (and not validly withdrawn)
pursuant to the Offer, without interest (subject to limited exceptions specified in the CVR Agreement) and less any applicable taxes required to be withheld, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated
November 9, 2017 (as amended or supplemented from time to time, the
Offer to Purchase
), and in the related Letter of Transmittal (as amended or supplemented from time to time, the
Letter of Transmittal
).
The Offer is described in a Tender Offer Statement on Schedule TO, filed by Mallinckrodt, Purchaser and Parent with the SEC on November 9, 2017. The Offer to Purchase and form of Letter of Transmittal are filed as Exhibits (a)(1)(A)
and (a)(1)(B) to the
Schedule 14D-9, respectively.
Capitalized terms used, but not
otherwise defined, in this Amendment shall have the meanings ascribed to them in the
Schedule 14D-9. The
information in the
Schedule 14D-9 is
incorporated into this Amendment by reference to all applicable items in the
Schedule 14D-9, except
that such information is hereby amended and supplemented to the extent specifically provided
herein.
Item 8. Additional Information.
Item 8 (
Additional Information
) of the
Schedule 14D-9 is
hereby amended
and supplemented by inserting the following heading and paragraph on page 47 of the
Schedule 14D-9 after
the first paragraph under the heading
Annual and Quarterly Reports
.
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Litigation
On November 17, 2017, Anthony Franchi, alleging himself to be a stockholder of the Company, filed a putative class action complaint in the
United States District Court for the Northern District of California, captioned
Anthony Franchi v. Ocera Therapeutics, Inc. et al.
, Case No.
3:17-cv-06636
(the
Franchi Complaint
) against the Company, all members of the Board, Mallinckrodt, Purchaser, and Parent. Among other things, the Franchi Complaint alleges that Defendants misrepresented and/or omitted to state material
information in the
Schedule 14D-9, rendering
it false and misleading and in violation of the Exchange Act and related regulations. In addition, the Franchi Complaint alleges that the members of the
Board and Mallinckrodt acted as controlling persons of the Company within the meaning and in violation of Section 20(a) of the Exchange Act to influence and control the dissemination of the allegedly defective Schedule
14D-9.
The Franchi Complaint seeks, among other things, an order enjoining consummation of the Transactions, rescission of the Transactions if they have already been consummated or rescissory damages, an order
directing the Company to file a solicitation statement that does not contain any untrue statement of material fact and states all material facts required in order to make the statements contained therein not misleading, a declaration that the
defendants violated Sections 14(e), 14(d), 20(a) of the Exchange Act and Rule
14d-9
promulgated thereunder and an award of costs, including attorneys fees and experts fees. Similar cases may also
be filed in connection with the proposed merger.
3
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: November 20, 2017
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Ocera Therapeutics, Inc.
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By:
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/s/ Michael Byrnes
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Name:
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Michael Byrnes
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Title:
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Chief Financial Officer and Treasurer
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