This Amendment No. 1 (this
Amendment No.
1
) amends and
supplements the Solicitation/Recommendation Statement on Schedule
14D-9
(as amended or supplemented from time to time, the
Schedule
14D-9
) filed by
Spark Therapeutics, Inc., a Delaware corporation (the
Company
,
Spark
,
we
or
us
), with the Securities and Exchange Commission (the
SEC
) on March 7,
2019.
The Schedule
14D-9
relates to the cash tender offer (the
Offer
) by 022019 Merger
Subsidiary, Inc., a Delaware corporation (
Merger Sub
), a wholly owned subsidiary of Roche Holdings, Inc., a Delaware corporation (
Roche Holdings
), to acquire all of the issued and outstanding shares of common
stock, par value $0.001 per share (the
Shares
and each, a
Share
), at a price per Share equal to $114.50, net to the seller of such Shares in cash, without interest, subject to any withholding of taxes required
by applicable law. The Offer is disclosed in the Tender Offer Statement on Schedule TO (together with any amendments or supplements thereto, the
Schedule TO
), filed by Roche Holdings and Merger Sub with the SEC on March 7,
2019, and is made upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 7, 2019 (together with any amendments or supplements thereto, the
Offer to Purchase
), and in the related Letter of
Transmittal.
The information in the Schedule
14D-9,
including all exhibits and annexes that were previously filed
with the Schedule
14D-9,
is incorporated in this Amendment No. 1 by reference, except that such information is hereby amended or supplemented to the extent specifically provided herein. Capitalized terms
used herein and not defined shall have the meanings ascribed to them in the Schedule
14D-9
and page number references herein refer to the Schedule
14D-9.
Item 8. Additional Information
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1.
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Item 8 of the Schedule
14D-9
is hereby amended and supplemented by
inserting the following heading and paragraph on page 45 of the Schedule
14D-9,
after the paragraph entitled Annual and Quarterly Reports:
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Legal Proceedings Related to the Offer and the Merger.
On March 7, 2019, a putative securities class action complaint,
Wang v. Spark Therapeutics, Inc. et al.
, No. 1:19-cv-00479 (the
Wang
Complaint
), was filed in the United States District Court for the District of Delaware by purported Spark shareholder Elaine Wang against Spark and Sparks directors in connection with the Transactions. On March 11, 2019, a putative
securities class action complaint,
Kent v. Spark Therapeutics, Inc. et al.
, No. 1:19-cv-00485 (the
Kent Complaint
), was filed in the United States District Court for the District of Delaware by purported Spark shareholder
Michael Kent against Spark, Sparks directors, Merger Sub, and Roche Holdings in connection with the Transactions. On March 18, 2019, a putative securities class action complaint,
Newman v. Spark Therapeutics, Inc. et al.
, No.
1:19-cv-00528 (the
Newman Complaint
), was filed in the United States District Court for the District of Delaware by purported Spark shareholder Arthur Newman against Spark and Sparks directors in connection with the
Transactions. The Wang Complaint, the Kent Complaint and the Newman Complaint allege that the Schedule 14D-9 filed on March 7, 2019 in connection with the Transactions omitted certain supposedly material information. The Wang Complaint, the Kent
Complaint, and the Newman Complaint assert claims against all the defendants for violation of Section 14(e) of the Exchange Act, and against Sparks directors, and in the case of the Kent Complaint, Roche Holdings, for violation of Section
20(a) of the Exchange Act. The Wang Complaint and the Kent Complaint also assert claims against all defendants for violation of Section 14(d) of the Exchange Act. The Wang Complaint, the Kent Complaint, and the Newman Complaint seek declaratory and
injunctive relief, as well as damages and attorneys fees and costs. The Company and the board of directors of the Company believe that the Wang Complaint, the Kent Complaint, and the Newman Complaint are without merit and the Company, the
board of directors of the Company, Merger Sub, and Roche Holdings intend to defend vigorously against such claims. Additional similar cases may also be filed in connection with the Offer or the Merger.
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2.
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The first paragraph set forth in Item 8 in the section titled Regulatory Approvals on page 44 of
the Schedule
14D-9
is hereby amended and restated in its entirety and replaced by the paragraphs set forth below:
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Under the HSR Act, certain acquisition transactions may not be consummated unless certain information has been furnished to the Antitrust Division of the
Department of Justice (the
Antitrust Division
) and the Federal Trade Commission (
FTC
) in Notification and Report Forms provided by the acquiring and acquired persons, and certain waiting period requirements have
been satisfied. The initial waiting period for a cash tender offer is 15 days, but (1) this period may be shortened if the reviewing agency grants early termination, (2) it may be restarted if the acquiring person voluntarily
withdraws
and re-files its
Notification and Report Form
(a pull-and-refile), and/or
(3) it
may be extended if the reviewing agency issues a request for additional information and documentary material, in which case the waiting period expires 10 days after the date when the acquiring person has substantially complied with such request. The
purchase of Shares pursuant to the Offer is subject to such requirements. The Company and Roche Holdings each filed a Premerger Notification and Report Form under the HSR Act with the FTC and the Antitrust Division in connection with the purchase of
Shares in the Offer on March 1, 2019. The required waiting period with respect to the Offer was to expire at 11:59 p.m., Eastern Time on March 18, 2019. According to the Offer to Purchase, Roche Holdings has withdrawn the March 1,
2019 filing effective on March 18, 2019. Roche Holdings refiled a Premerger Notification and Report Form under the HSR Act with respect to the Offer and the Merger with the Antitrust Division and the FTC on March 18, 2019.